BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH
NEW DELHI
_______________________________________________

APPEAL NO. 54/2018

IN THE MATTER OF:

H.P. Ranjanna
Aged about 59 years
S/o Late Papa Reddy
Residing at No. 1632,
22nd Cross, 26th Main, 2nd Sector, HSR Layout,
Bengaluru-560102, Karnataka Appellant

Verses

1. Union of India
Through Secretary,
Ministry of Environment, Forest & Climate Change,
Indira Paryavaran Bhavan,
Jor Bagh Road,
New Delhi-110003

2. The State of Karnataka

Vidhana Soudha, Bangalore-560001
Represented by its Chief Secretary

3. Karnataka State Environment Impact Assessment Authority

(SEIAA)
Ambedkar Veedhi,
Sampangi Rama Nagar,
Bengaluru, Karnataka-560001
Represented by its Member Secretary

4. Bangalore Development Authority (BDA)

T. Chowdaiah Road, Kumara Park West
Bengalore-560020
Represented by its Commissioner

5. Bruhat Bengaluru Mahanagara Palike (BBMP)

N.R. Square, Corporation Circle,
Bengalore-560001
Represented by its Commissioner

6. The Karnataka State Pollution Control Board

―Parisara Bhavan‖, #49, 4th and 5th Floor,
Church Street, Bengalore-560001
Represented by its Chairman

7. Karnataka State Fire & Emergency Services

No. 1, Annaswamy Mudhaliar Road,
Bangalore-560042
Represented by its Director of Fire Services

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 8. Bangalore Electricity Supply Company (BESCOM)
Corporate Office, K.R. Circle
Bangalore-560001
Represented by its Managing Director

9. Bangalore Water Supply and Sewerage Board (BWSSB)

Cauvery Bhavan, K.G. Road,
Bangalore-560009
Represented by its Chairman

10. Lake Development Authority (LDA)

Parisara Bhavan, No. 49, Second Floor, Church Street,
Bangalore-560001
Through its chief Executive Officer

11. Wonder Projects Development Private Limited

A Company Incorporated under the Companies Act, 2013
Having Registered Office at
Godrej One, 5th Floor, Pirojshanagar,
Eastern Express Highway, Vikrohli (East)
Mumbai-400079

Having Regional Office at

No. 80, Second Cross, Hulkul Ascent,
Lavelle Road, Bangalore-560001
Through its authorized Signatory

12. Godrej Properties Ltd.

A Company Incorporated under the Companies Act, 2013
Having Registered Office at
Godrej One, 5th Floor, Pirojshanagar,
Eastern Express Highway, Vikrohli (East)
Mumbai-400079

Having Regional Office at

No. 80, Second Cross, Hulkul Ascent,
Lavelle Road, Bangalore-560001
Through its authorized Signatory
Respondent(s)

With

ORIGINAL APPLICATION NO. 602/2019

IN THE MATTER OF:

H.P. Rajanna
Aged about 60 years
S/o Late Papa Reddy
Residing at No. 1632, 22nd Cross, 26th Main,
2nd Sector, HSR Layout, Bengaluru-560102
Karnataka Applicant

Verses

2
1. Union of India
Through Secretary,
Ministry of Environment, Forest & Climate Change (MoEF&CC)
Regional Office, South Zone,
Kendriya Sadan, 4th Floor, E&F Wings, 17th Main Road,
Koramangala II Block,
Bengaluru-560034

2. The State of Karnataka

Through its Chief Secretary
Vidhana Soudha,
Bangalore-560001

3. Karnataka State Environment Impact Assessment Authority

(SEIAA)
Through its Member Secretary
Ambedkar Veedhi,
Sampangi Rama Nagar,
Bengaluru-560001

4. Bruhat Bengaluru Mahanagara Palike (BBMP)

Through its Commissioner
N.R. Square, Corporation Circle,
Bengalore-560001

5. Karnataka State Pollution Control Board (KSPCB)

Through its Chairman,
―Parisara Bhavan‖, #49, 4th and 5th Floor,
Church Street, Bengalore-560001

6. Bangalore Water Supply and Sewerage Board (BWSSB)

Through its Chairman
Cauvery Bhavan, KG Road,
Bangaluru-560009

7. Bangalore Development Authority (BDA)

Through its chairman,
Kumara Krupa West, T. Chowdaiah Road
Bengaluru-560020

8. Karnataka State Fire & Emergency Services (KSFES)

Through its Director of Fire Services
No. 1, Annaswamy Mudhaliar Road,
Bangalore-560042

9. Wonder Projects Development Private Limited

Through its authorized Signatory
No. 80, Second Cross, Hulkul Ascent,
Lavelle Road, Bangalore-560001

10. Godrej Properties Ltd.

Through its authorized Signatory
No. 80, Second Cross, Hulkul Ascent,
Lavelle Road, Bangalore-560001 Respondent(s)

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 With

ORIGINAL APPLICATION NO. 281/2019

IN THE MATTER OF:

Mahadevpura Parisara Samrakshane Mattu Abhivrudhi Samiti

(MAPSAS)
Regd. Office: Incubex,
#9/2, Coronet Green Commercial,
(Above Big Bazar)
Sarjapur Road, Bengaluru-560102
Represented by its Managing Trustee
Sri Subramanian Sankaran Applicant

Verses

1. Union of India
Indira Paryavaran Bhavan,
Jor Bagh Road, New Delhi-110003
Through the Ministry of Environment, Forest & Climate Change
Represented by the Secretary

2. Karnataka State Environment Impact Assessment Authority

(SEIAA)
Ambedkar Veedhi,
Sampangi Rama Nagar,
Bengaluru, Karnataka-560001
Through its Member Secretary

3. Bangalore Development Authority (BDA)

T. Chowdaiah Road, Kumara Park West
Bengalore-560020
Represented by its Commissioner

4. Bruhat Bengaluru Mahanagara Palike (BBMP)

N.R. Square, Corporation Circle,
Bengalore-560001
Represented by its Commissioner

5. State of Karnataka
Vidhana Soudha,
Bangalore-560001
Represented by its Chief Secretary

6. Karnataka State Pollution Control Board (KSPCB)

―Parisara Bhavan‖, #49, 4th and 5th Floor,
Church Street, Bengalore-560001
Represented by its Chairman

7. Bangalore Electricity Supply Company (BESCOM)

Corporate Office, K.R. Circle
Bangalore-560001
Represented by its Managing Director

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8. Bangalore Water Supply and Sewerage Board (BWSSB)
Cauvery Bhavan, KG Road,
Bangalore-560009
Represented by its Chairman

9. Central Ground Water Authority (CGWA)

30, Sector-5, RK Puram,
New Delhi-110066
Represented by its Chairman

10. Sri. Ramesh Kumar

S/o H. Srinivasa Reddy
Aged about 38 years
Residing at halanayakanahalli
Carmelram Post,
Bangalore-560039 Respondent(s)

Counsel for Appellant(s)/Applicant(s):

Mr. Raj Panjwani, Senior Advocate with Mr. Rahul Choudhary, Advocate
(In Appeal No. 54/2018 and OA No. 602/2019)
Mr. Ram Prasad, Advocate (In OA No. 281/2019)

Counsel for Respondent(s):

Mr. Pinaki Misra, Senior Advocate with Mr. V. D‘Costa and Ms. Astha Ojha,
Advocates for respondents-11 and 12
Mr. Darpan KM, Advocate for State of Karnataka and BBMP
Mr. Mukesh Kumar, Advocate for KSPCB
Mr. H.K. Vasanth, Advocate for SEIAA, Karnataka

ORDER
PRESENT:

HON‘BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON

HON‘BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON‘BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON‘BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON‘BLE DR. NAGIN NANDA, EXPERT MEMBER
________________________________________________________________________
Reserved on: 22nd June, 2021
Pronounced and uploaded on: 30th July, 2021
_______________________________________________________________________

BY HON‘BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

1. In these three matters, appellant/applicants have brought before

us their apprehension which according to them is real, eminent and

substantial to the environment and ecology on account of construction

activities around wetland area in Bengaluru city, State of Karnataka

which is known as city of Gardens and also had a large number of lakes

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at some point of time but there is substantial extinction/disappearance

due to encroachment, reclamation etc. in the name of development.

Threat to environment presently is a serious issue. The people pay least

respect to environment and do not hesitate in causing damage or

destruction or otherwise loss to ecology and environment in order to gain

materialistic luxuries of life. The common belief is that the material

substance belongs to them and environment is a no man‘s land where

anybody can lend and do whatever it likes unmindful of damage to

environment and ecology.

2. Protection of environment is not a novel idea of West only or

something which has its genesis a few decades or centuries back.

Instead, in India, at least we have considerable recorded documents to

show that nature and environment has been paid due regard, treated in

holistic manner and revered by people of this Country, comprising of all

constituent and entities. In fact, our Vedic Literature shows that the very

human body was treated as comprising of Pancha Bhutas or Five

elements namely Ether, Universal Space or Firmament (Aakash), Air

Vayu), Energy or Fire (Agni or Tez), Water (Aapah or Jal) and Earth

(Prithvi). Nature has maintained a status of balance among these

constituents or elements and living creatures. Since time immemorial or

Vedic or Pre-Vedic era, we find that in Indian sub-continent Saints, sages

and Seers were great visionaries. They perceived creation of universe in a

scientific manner. They revealed mysteries of cosmic evolution with

profound wisdom. To bring the people in closeness with nature,

intellectuals in ancient India, gave it religious form so that people will

treat dictates towards nature as mandate and follow all steps for its

preservation and protection. We give respectful relations to various

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natural attributes e.g. earth as mother. Similar relative terms were used

for Tree, Sky, Rain, Water, Air etc.

3. In Vedic Literature water has been given very high respect and

treated with great reverence. Water is a part of human environment. It

has been pointed out that it occurs in five forms namely: 1. Rain Water

(Divya), 2. Natural Springs (Srevanti), 3. Wells and Canals (Khanitrimah),

4. Lakes (Svayamjah) and 5. Rivers (Samudrarthas). Some other

classifications have also been made like drinking water, medicinal water

and stable water etc. It is said that all creatures are borne from water,

and water is producer of all that is stationary or all that moves. Saints,

Sages and Seers were aware that human habitation is mostly near rivers

and waters and their daily activities would likely pollute water and harm

nature‘s balance. To discourage it, we find in Padam Puran a caution. It

says “The person who pollute water of ponds, wells or lakes goes to

hell”. In Chandogya Upanishad, it is said “Water has generated

plants which in turn generate food”. Rig Veda instructs that forest

should not be destroyed, earth is creeper of creation, container of forest,

trees or hubs and plants are alive. Padam Puran says that one tree is

equal to 10 sons.

4. In Vedic era, Saints, Sages and Seers always propagated that in

environment all elements are interrelated and affect each other. Sun

draws water from ocean through rays. Earth gets rain from sky and it

goes to plants. Plants produced food for living being. The whole process

of nature was treated as a sort of ‗Yajna‘ (‗Yagya‘). Probably with this in

mind, we find, in Vedic philosophy, ‗Yajna‘, i.e., Yagya was an important

concept and part of Vedic environmental awareness. The view was that

7
Yajan (Yagya) cleans atmosphere through its medicinal smoke. It

provides longevity, breath, vision etc., as is evident from Yajur Veda.

5. Issue of ecological damage to the area between two lakes namely

‗Kaikondarahalli Lake‘ and ‗Kasavanahalli Lake‘ is an issue in these

matters. In fact, the disputed project sites are abutting ‗Kaikondarahalli

Lake‘ and at a distance of about 300 to 400 meters from another lake

namely, ‗Kasavanahalli Lake‘. The grievance is that Statutory Authorities

are not taking care for protection of environment and in particular,

wetland and its surrounding area, by allowing construction activities and

development of residential projects in the wetland area which will damage

the said area irreversibly and may result ultimately in extinction of

wetland also. Respondents-PPs are contesting the matter, denying all the

allegations and we have to examine rival claim with the objective that in

environmental matters, sustainable development is the principle on

which various aspects have to be considered and development as well as

protection of environment has to be maintained with a balanced

approach.

6. Appeal No. 54/2018 and OA No. 602/2019 have been filed by the

same person namely H.P. Ranjana complaining about violation of

environmental laws and damage to the environment on account of a

project launched by M/s. Wonder Projects Development Private Limited

(respondent-11), M/s. Godrej Private Limited (respondent-12), mainly on

the ground that the project is abutting to ―Kaikondarahalli Lake‖, has

violated environment laws including provisions relating to wetlands and

Rajakaluves which are passing through or around the proposed project.

OA No. 281/2019 relates to different survey numbers and project carried

on by another person namely Ramesh Kumar but grounds taken therein

8
are also violation of provisions relating to wetlands and Rajakaluves, and

constructions raised in ‗buffer zone‘ or surrounding area of

―Kaikondarahalli Lake‖. The issues raised in all these three matters are

broadly overlapping and on similar legal grounds. Hence all the three

matters have been heard together and are being decided by this common

judgment.

7. Before considering the issues on merits, we find it appropriate to

have, in brief, pleadings of the parties in all the three matters, but

separately.

Appeal No. 54/2018-(Pleadings of Appellant):

8. Appeal No. 54/2018 has been filed on 09.04.2018 under Section

16(h) read with Sections 14, 15, 18 and 20 of National Green Tribunal

Act, 2010 (hereinafter referred to as ‗NGT Act, 2010‘) assailing

Environmental Clearance (hereinafter referred to as ‗EC‘) dated

10.01.2018 issued by Karnataka State Environment Impact Assessment

Authority (respondent-3) (hereinafter referred to as ‗SEIAA, Karnataka‘) in

favour of M/s. Wonder Projects Development Private Limited (respondent-

11) a subsidiary company of M/s. Godrej Properties Ltd. (respondent-12),

having registered office at Godrej One, 5th floor, Pirojshanagar, Eastern

Express Highway, Vikrohli (East), Mumbai (hereinafter referred to as the

‗PP‘). Appellant has further prayed that respondents authorities be

restrained from granting any permission, sanctions, licenses, clearances,

consents, no objection certificates, building plans and building licenses

in favour of PP; respondents 11 and 12 shall not create any Third Party

Rights, whatsoever, in any manner in the Project land or part thereof or

changing or altering nature and character of Project land, putting up any

construction thereon, and carrying on any construction activities, in any

9
manner, whatsoever. Further it is prayed that any permission,

sanctions, licenses, clearances, consents and no objection certificates,

issued in favour of PP in relation to project in question, be quashed, and

PP as well as respondents authorities be directed to pay compensation,

restitute and remediate damage caused to the environment and ecology of

eco-fragile area on account of gross negligence and non-application of

mind and also for non-adherence to their statutory duties under law.

Lastly, it is prayed that respondents‘ authorities be directed to enforce

judgment of this Tribunal, rendered in Forward Foundation & Ors. v.

State of Karnataka & Ors., Original Application No. 222/2014

dated 07.05.2015 and 04.05.2016; and also provisions of Environment

Impact Assessment Notification, 2006 (hereinafter referred to as ‗EIA

2006‘), Water (Prevention and Control of Pollution) Act, 1974 (hereinafter

referred to as ‗Water Act, 1974‘), Environment (Protection) Act, 1986

(hereinafter referred to as ‗EP Act, 1986‘), Revised Master Plan-2015

(hereinafter referred to as ‗RMP-2015‘), Karnataka Town and Country

Planning Act, 1961 (hereinafter referred to as ‗KTCP Act, 1961‘),

Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as

‗KMC Act, 1976‘) and other Municipal Bye-laws, concerning environment,

in relation to ‗buffer zones‘.

9. Facts in brief, as stated by Appellant, are, that he is resident of

1632, 22nd Cross, 26th main, 2nd Sector, HSR Layout, Bengaluru,

Karnataka which falls in Planning Area no. ‗3.18 Begur‘ under RMP-

2015. The disputed work of PP involves construction of new high rise

residential building project, titled as, ―Godrej Reflections‖, on a single plot

admeasuring 12 acres 18 guntas in Survey nos. 61/2, 62 and 63/2 and

falls in ward no. 150 (Bellandur Ward), Kasavanahalli, Mahadevapura

zone, Varthur Hobli, Bengaluru. Project is within the same planning area

10
in which Appellant is residing. It is also within the jurisdiction of Bruhat

Bengaluru Mahanagara Palike (respondent-5) (hereinafter referred to as

‗BBMP‘). PP submitted an application dated 14.10.2017 to SEIAA,

Karnataka, seeking ‗Prior EC‘ for disputed project under EIA 2006 stating

that the construction is proposed on a plot area of 50382.91 square

meters and total built up area is 128193.9 square meters. The disputed

project comprises of 2 residential blocks having 2 Basements+Ground

Floor+20 Upper Floors with 655 units. Total parking space, proposed

was, 877 number of cars. PP also disclosed that water consumption

would be 534 KLD (Fresh water + Recycled water) and total waste water

discharge would be 482 KLD. PP proposed to construct two Sewage

Treatment Plants (hereinafter referred to as ‗STP‘) with a capacity of 210

KLD and 280 KLD. The application and documents submitted by PP

were considered by State Environment Assessment Committee

(hereinafter referred to as ‗SEAC‘) in its meeting dated 20.12.2017. It

recommended to accord EC which was issued by SEIAA, Karnataka, vide

letter dated 10.01.2018. This EC has been assailed by Appellant broadly

on the following grounds:

(a) Form I and IA along with Environment Management Plan

submitted by PP for seeking grant of EC suffers from serious

errors on facts and is a blatant attempt to fraudulently mislead

SEIAA, Karnataka, in terms of information provided;

(b) Impugned EC has been granted in violation of Tribunal‘s

judgments dated 07.05.2015 and 04.05.2016 in Forward

Foundation & Ors. (supra);

(c) Impugned EC has been granted in complete violation of

Municipal Laws, Building Bye-laws and RMP-2015;

11
 (d) Disputed project violates various provisions of Water Act, 1974

and Wetlands (Conservation and Management) Rules, 2017

(hereinafter referred to as ‗Wetland Rules, 2017‘);

(e) Impugned EC has been granted without any application of mind

and suffers from patent errors of law and facts.

10. Elaborating above grounds, appellant has pleaded that there are 3

Rajakaluves/nallas, one primary and two secondary, passing through the

project site of disputed project, around which, 50 meters and 35 meters

‗buffer zone‘ is to be maintained which has to be ―No Development Zone‖;

the excavation work required for execution for raising two towers would

involve digging of 50000 m3 of earth for Phase-1 and 85000 m3 for Phase-

2 which will be carried out in an Eco-fragile land, within the ‗buffer zone‘

that is ―No Development Zone‖ of lake and Rajakaluve, is bound to affect

Eco-system; PP is planning to raise the area, since it has been stated

that excavated earth will be reused within the site for ground leveling and

also in Green Belt Development activities, within the ‗buffer zone‘ of lake

and Rajakaluves, whereby, it will create a virtual embankment within the

catchment area and qualitatively destroy Eco-system of Water Bodies;

PP‘s claim that re-use of excavated earth is only ground leveling, is

nothing but an eye-wash, and an attempt to mislead the authorities that

it would not cause any ecological harm to environment; it is in fact a way

to dam lake and Rajakaluves within the project site, altering its natural

flow and spread around the area; PP, while stating in the application that

excavated earth will be re-used for backfilling and landscape

development, in fact, contradicts own stand with respect to Green Belt

Development and Landscape Development in as much as, plan to develop

landscape around and within ‗buffer zone‘ is an admitted plan of action of

12
PP and this information has been concealed; the project site is within

‗buffer zone‘; the sprawling lake touches boundary of project; the area is

an extremely Eco-Sensitive Zone; land of project site is an undeveloped

site with no population residing thereon; with an expected 655 units of

apartment and 877 number of cars to be parked within the site in

question; it would be incorrect to claim that there would be no effect on

Eco-system of the surrounding areas and no long term effects of such

load would fall on Eco-fragile region; the project, if allowed, could

obliterate the region in as much as the magnitude of project would place

unsustainable load, both in terms of pollution caused and usage of water,

amenities, waste discharge and other environmentally harmful activities;

the information that disputed project abuts the lake and that there are

three Rajakaluves going through the project site, has been concealed; PP

on one hand has stated before SEIAA, Karnataka that requirement of

water shall be met by Bore-well, but, in fact, record shows that the said

requirement shall be met solely from water supplied by Bengaluru Water

Supply and Sewerage Board (respondent-9) (hereinafter referred to as

‗BWSSB‘); the project site is within 75 meters of ‗buffer zone‘ in relation to

lake; 50 meters ‗buffer zone‘ in relation to Primary Rajakaluve and 35

meters ‗buffer zone‘ from the edges of Secondary Rajakaluve; any

construction within ‗buffer zones‘ is illegal and not only violates Wetland

Rules, 2017 but also judgment of this Tribunal in Forward Foundation

& Ors. (supra) rendered on 04.05.2016; EC has been granted by

Competent Authority over-looking specific provisions of Environmental

laws, judgment of Tribunal, in a mechanical manner without application

of mind, and in fact, in collusion with PP; the project, if allowed to

proceed, would cause irreparable harm to the Sensitive Environment,

destroy Eco-system of fragile area and Eco-system services associated

13
with the lake and Rajakaluves; Competent Authority is also violating

environment laws in as much as one of the conditions in EC states that

the provisions of environmental and other laws shall be followed ignoring

the fact that under RMP-2015, 30 meters is the ‗buffer zone‘ provided for

―No Development Zone‖ while the said distance has been extended to 75

meters by Tribunal in Forward Foundation & Ors. (supra); further,

note to Regulation 4.12.1 (ii)(iii) of RMP-2015 states that drains are

categorized into three types namely Primary, Secondary and Tertiary and

these drains will have a buffer of 50, 25 and 15 meters, respectively,

measured from the centre of drain, on either side; Tribunal‘s order dated

07.05.2016 in Forward Foundation & Ors. (supra) has expanded

‗buffer zone‘ in relation to Rajakaluves to the extent of 50 meters, 35

meters and 20 meters but these provisions are being violated by allowing

construction in ‗buffer zone‘; PP has proceeded with construction,

without a sanctioned building plan, and, also consent under Section 25

of Water Act, 1974; impugned EC also violates provisions of Wetland

Rules, 2017 in as much as site of the Project falls in extremely Eco-

sensitive wetland and construction allowed therein despite prohibition

would violate statutory provisions as above; SEIAA, Karnataka was under

a statutory duty to look into all these aspects but without applying mind

and considering relevant aspects, in particular, that the project site forms

a substantial part of Eco-logically fragile region, has issued EC; SEIAA,

Karnataka has neither examined actual site situation nor referred to any

data nor limits/restrictions, nor has applied or considered the express

mandate of order of Tribunal in Forward Foundation & Ors. (supra);

PP has claimed that it would only develop Park and/or Open Space in

‗buffer zone‘ but even this is not permissible is as much as construction

of Parks and/or Open Space, as a part of Civic Amenities would require

14
laying foundation, providing amenities such as

benches/tables/gates/swings etc. and this is also part of construction

which is prohibited in a ‗buffer zone‘ being ―No Development Zone‖;

leveling of excavated soil cannot be permitted in ‗buffer zone‘ as it would,

in fact, account to damming and creating an embankment within such

‗buffer zone‘ but SEIAA, Karnataka has not applied its mind on this

aspect and in a mechanical manner has issued EC.

11. Appeal at the time of filing was barred by limitation by 21 days.

Therefore, MA No. 542/2018 was filed seeking condonation of delay. This

application was allowed by order dated 01.10.2018. Delay was condoned

and parties were permitted to file their response.

Respondent‘s pleadings:

12. On behalf of respondents, reply has been filed by Ministry of

Environment, Forest & Climate Change (hereinafter referred to as

‗MoEF&CC‘) (respondent-1), SEIAA, Karnataka (respondent-3), BBMP

(respondent-5), Karnataka State Pollution Control Board (hereinafter

referred to as ‗KSPCB‘) (respondent-6), Karnataka State Fire and

Emergency Services (hereinafter referred to as ‗KSFES‘) (respondent-7),

and PP, i.e., respondents-11 and 12.

Reply of respondent-1 (MoEF&CC):

13. Respondent-1 in its reply dated 11.05.2018 has stated that under

EP Act, 1986, read with Environment (Protection) Rules, 1986

(hereinafter referred to as ‗EP Rules, 1986‘), a Notification no. S.O.

1533(E) dated 14.09.2006 i.e. EIA 2006 has been issued. It has been

subsequently amended from time to time; under EIA 2006, construction

of new projects or activities or expansion or modernization of existing

projects or activities, listed in the Schedule, annexed to said notification,

15
entailing capacity addition with change in process and/or technology,

shall be undertaken in any part of India, as applicable, only after receipt

of ‗Prior EC‘ from Central Government or as the case may be, respective

SEIAA; Central Government under Section 3(3) of EP Act, 1986, following

procedures specified in EIA 2006, has constituted SEIAAs in different

States/Union Territories; under EIA 2006, EC for building and

construction projects, area development projects and townships are

covered under entry 8 (a) and (b) of Schedule; and reads as under:

(i) 8(a): Building and Construction projects - ≥ 20000 sq. mts and <
150000 sq. mts of built-up area - (built up area for covered
construction; in the case of facilities open to the sky, it will be the
activity area)

ii. 8(b): Townships and Area Development projects Covering an area

≥ 50 ha. And or built up area >150000 sq. mts - (All projects under
Item 8(b) shall be appraised as Category B1).

14. Respondent-1 has further pleaded that the projects under category

‗B‘ are apprised by State Level Expert Appraisal Committees (SEACs) and

approved by concerned SEIAA. The disputed project was to be

considered by SEAC/SEIAA and not respondent-1, i.e., MoEF&CC.

SEIAA, Karnataka, accordingly, in terms of EIA 2006 has granted

clearance vide letter dated 10.01.2018, for the work to be carried out at

Survey nos. 61/2, 62, 63/2 Kasavanahalli, Mahadevapura Zone, Varthur

Hobli, Bengaluru by PP, M/s. Wonder Projects Development Private

Limited, (respondent-11)

Reply of respondent-3 (SEIAA, Karnataka):

15. SEIAA, Karnataka (respondent-3) has filed its reply dated

29.01.2019 stating that PPs have applied in accordance with the

provisions of EIA 2006 and EC has accordingly been granted by SEIAA,

16
Karnataka, vide Order no. SEIAA 114 CON 2017 dated 10.01.2018; as

per applicable law and guidelines, processing of applications for Consent

for Establishment (hereinafter referred to as ‗CFE‘) and Consent to

Operate (hereinafter referred to as ‗CTO‘) is undertaken by KSPCB ss

grant of EC by SEIAA; the role of KSPCB is limited to the grant of CFE

and CTO to a PP, in terms of the provisions of Water Act, 1974 and Air

(Prevention and Control of Pollution) Act, 1981, (hereinafter referred to as

‗Air Act, 1981‘) ; in respect of project under consideration, only CFE was

sissued by KSPCB; M/s. Wonder Projects Development Private Limited

had applied for CFE from KSPCB on 18.01.2018; on receipt of this

application, officers of Regional Office-Bommanahalli inspected the

project on 05.02.2018 and observed that construction work had not yet

started; later, CFE application was forwarded to Head Office along with

inspection report including details of compliance with this Tribunal‘s

order dated 04.05.2016, with respect to ‗buffer zone‘; thereafter, PP was

called for Technical Presentation on 24.08.2018 wherein clarification on

buffer zone with respect to nalla/drain was obtained; it was only after

confirming compliance with Tribunal‘s directions contained in order

dated 04.05.2016, with respect to ‗buffer zones‘, CFE was issued.

16. Respondent-3 i.e. SEIAA, Karnataka, has further stated that

KSPCB also independently verified, with the help of maps, that nearest

water bodies to the project site are ―Kaikondarahalli Lake‖ and

―Kasavanahalli Lake‖; ―Kaikondarahalli Lake‖ is located adjacent to the

proposed project, boundary towards north; as per Regional Officer‘s

report, PP has earmarked 75.67 meters ‗buffer zone‘ from proposed

building line (i.e. block 1 & 2) to the lake boundary and as such

earmarked this area for Parks/Green Belt; ―Kasavanahalli Lake‖ is

located at a distance of about 393 meters towards South; further, PP had

17
submitted a Development Plan (hereinafter referred to as ‗DP‘) which was

approved by Bangalore Development Authority (hereinafter referred to as

‗BDA‘); after issue of EC and verification of documents submitted by PP,

and consideration of issues pertaining to water pollution control

measures, KSPCB issued CFE, after placing before CCM meeting held on

15.09.2018; KSPCB has also ensured, after verification, that there is

compliance with Tribunal‘s order dated 04.05.2016 with respect to

maintenance of ‗buffer zones‘; during inspection on 05.02.2018, only a

model flat was found constructed for marketing purpose and PP had not

taken up any other construction activity; during inspection on

05.02.2018, PP had done ground preparation work only; allegations and

insinuations against KSPCB are prima-facie false and incorrect and

unfounded, either on facts or on applicable provisions of law or the

directions of Tribunal.

Reply of respondent-5 (BBMP)

17. Respondent-5, BBMP, in reply dated 05.09.2018 has supported the

cause of appellant. It has stated that it issued a Show Cause Notice-

cum-Stop Work Notice dated 13.07.2018, Confirmation Order (CO) dated

22.06.2018 and Provisional Order dated 06.06.2018 under Section 321 of

KMC Act, 1976. It has further stated, in brief, as under:

a) The project land, in fact, ‗wetland‘, and is situated abutting

―Kaikondarahalli Lake‖. The project land falls inside and within

two kinds of ‗buffer zones‘, defined in the order dated 04.05.2016 of

Tribunal in Forward Foundation & Ors. (supra), namely, Lake for

which, ‗buffer zone‘ limit was given as 75 meters from the periphery

of lake; and Rajakaluves/Nalla for which, ‗buffer zone‘ limit given is

35 meters on either sides from the edges of Rajakaluves/Nalla.

18
 Both these ‗buffer zone‘ limits are ‗Prohibited Areas‘ in terms of

order of Tribunal in Forward Foundation & Ors. (supra) and

directions issued therein that no permissions for the purposes of

sanctioning any construction project can be granted by any

authority for construction project, including project in question

namely, ‗Godrej Reflection‘;

b) The project land/wetland is situated in the catchment areas of

Bellandur and/or Varthur lakes. It is abutting ―Kaikondarahalli

Lake‖;

c) PP i.e. M/s. Wonder Project Development Private Limited has

submitted an application no. BBMP/Add.Dir/JD/NORTH/

0202/2017-18 dated 17.11.2017 to BBMP for sanction of Building

Plan and building license for the purpose of construction of high

rise residential building project (i.e. Godrej Reflections) on the land,

Khata no. 4131, Survey nos. 61/2, 62, 63/2 admeasuring 12 acres

18 guntas, situated in Kasavanahalli, Varthur Hobli Bangalore East

Taluk, BBMP Ward No.150 (Bellandur Ward), Mahadevpura Zone,

Bangaluru;

d) For the purpose of launching this project, PP has resorted to

various illegalities. In fact, PP had widely issued full page public

advertisements in leading English daily newspapers (advertisement,

copy at page no. 8 of MA No. 541/2018 in Appeal No. 54/2018),

advertising its project. In continuation of the same, PP in fact,

illegally and unauthorizedly raised construction of ‗Model Flat‘

comprising of ground floor and first floor, measuring 2,500 square

feet and there was on-going constructions, therefore, BBMP issued

Show Cause Notice-cum-Stop Work Notice dated 13.07.2018;

19
e) BBMP issued necessary orders to remove illegal and unauthorized

structures. It also issued Provisional Order dated 06.06.2018 under

Section 321 (1) & (2) of KMC Act, 1976, followed by Confirmation

Order dated 22.06.2018 under section 321(3) of KMC Act, 1976.

Photographs at page 60 of rejoinder affidavit filed by appellant, on

22.05.2018 show illegal construction raised in the disputed project

land for which BBMP has issued the above said orders to remove

unauthorized constructions;

f) The application dated 17.11.2017 submitted by PP, seeking

sanction of building plan and building license is invalid and

contrary to mandatory requirements under KMC Act, 1976 and

para 3.2 of BBMP Building Bye-laws, 2003 which reads as under:

―3.2 Application and documents to be submitted with the

application,- Every person who intends to erect or re-erect or
alter a building, including temporary structures for the purpose
of exhibitions, trade fair or circus or execute any of the works
other than repairs, as specified in Section 299, 304 or 312 of the
Act, shall give an application in writing to the Authority in the
Form set forth in Schedule II and such application shall be
accompanied by plans, documents and information as required
hereunder:

Schedule-II (Building Bye-law No.3.2) i.e. Form of application

for building license required that:

―3. Site Plan, showing the existing features like trees, well etc.
(Block levels to be furnished in cases where the gradient of the
land exceeds 5% (1:20) or where basement/cellar floors are
proposed below ground level).

20
 10. No objection certificate from agencies like, BDA,
BESCOM, BWSSB, KSCB District Magistrate, Director of
Factories and Boilers, Controller of Explosives, Railways, Fire
Force Department, Airport Authority of India, Government
Health Department and any other authority wherever
applicable.‖

g) The mandatory requirements contemplated vide para 3.2 (3) & (10)

at Serial nos. 3 and 10 were not complied with by PP, despite Show

Cause Notice-cum-Stop Work Notice dated 13.07.2018 wherein

BBMP requested PP to produce documents stated in para no.19 of

the said Notice. However, PP has not furnished these required

documents till date. BBMP in para no.19 of the notice specifically

sought for mandatory permission i.e. Consent to Establish (CFE)

from KSPCB and No Objection Certificate (NOC) from BWSSB, for

the project in question;

h) Application form seeking mandatory ‗Consent to Establish‘ the

project u/s 25 of Water Act, 1974 for establishing the project was

submitted only on 10.01.2018. This shows that the application

seeking building plan and building licenses were not in accordance

with mandatory requirements under BBMP Bye-laws 3.2 and

Sections 299, 304 and 312 of KMC Act, 1976. Moreover, it is

mandatory to first obtain ―consent to establish the project‖ as

stated by Supreme Court, in para 50 of the judgment in Anirudh

Kumar vs. Municipal Corporation of Delhi & Ors., 2015 (7)

SCC 779;

i) The project site discloses illegal construction activity at the far end

(on the Eastern side) of the project. There is vast extent of earth

excavated even as on 14.05.2018 and dumping this excavated

21
 earth in the form of hillocks along the periphery of ―Kaikondarahalli

Lake‖ and in other parts of the project site;

j) Respondent-9 (BWSSB), in its letter dated 23.09.2017, addressed

to PP, regarding request for issue of statutorily required

permission/No Objection Certificate/NOC, has stated:

―The above area falls under jurisdiction of 110 villages and

water supply and UGD is maintained by BBMP. Since the work
of providing water supply facility in 110 villages is taken up by
the Board, until the completion of the work issue of NOC has
been withheld.‖

k) The drawings submitted to BBMP by PP for the purpose of sanction

of building plan and building license indicate that the proposed

constructions of two blocks of residential apartments buildings,

i.e., Block-1 (63.60 meters in height) is at the end of project land,

while Block-2 is at the entrance of project land. In this background,

Zoning Regulation-3.12 framed under KTCP Act, 1961 is applicable

to the project and application seeking building plan and building

license. Zoning Regulation-3.12 reads as under:

―3.12) No Objection Certificates:

i. For all Development Plans, Apartment buildings and
Residential layouts which come under the category
stipulated by the KSPCB, necessary NOC from KSPCB
(KSPCB shall mention the need for environment
clearance if any in the NOC) shall be furnished.

ii. For all buildings with a height of 24.0m and above,

NOC from Fire Force in addition to NOC from
Pollution Control Board (KSPÇB shall mention the
need for environment clearance if any in the NOC) shall
be furnished......‖

22
l) There is non-compliance of Zoning Regulation-3.12 since height of

proposed building is above 24 meters, clearance/consent/NOC

from KSPCB is mandatory and PP had not complied with the said

requirement for the purpose of sanction of building plan and

building license;

m) The project land being wetland and abutting ―Kaikondarahalli

Lake‖, is in the catchment area of Bellandur Lake and/or Varthur

Lake, the Rajakaluve/nalla and lake‘s ‗buffer zones‘;

n) PP had submitted, to BBMP, DP issued by BDA i.e. permission for

scheme of development of project (not permission for construction

of building). Relying upon the said DP, PP has sought for grant of

Building Plan and building license from BBMP;

o) Above stated DP issued by BDA, clearly discloses that there is nalla

passing through the adjacent land in Survey no. 57 and that 25

meters buffer line falls inside the project land. However, inside this

25 meter ‗ buffer line/zone‘ which is a prohibited area, permission

for construction of 12 meters wide drive way and installation of gas

bank/infrastructure for LPG piped line was approved;

p) In fact the above said drive way of 12 meters continues and passes

through primary nalla as can be seen in the DP and various

portions of the said 25 meters wide drive way, falls inside the 50

meter buffer line on both the sides of said 50 meter ‗buffer zone‘.

This 50 meters ‗buffer zone‘ on either sides of the primary nalla is

also a prohibited area and not an area of regulated activity. So far

as 75 meters lake ‗buffer zone‘ is concerned, it is also a prohibited

area and not an area of regulated activity, yet permission for

23
 creation of ramp and drive way was approved in respect of both

Block-1 and Block-2;

q) The permission/DP also indicated another nalla in Survey no. 61/1

which is adjacent to Survey no. 61/2 and 25 meter ‗buffer zone‘.

However, inside this 25 meters ‗buffer zone‘/prohibited area,

permission for 8 meters wide Fire Driveway and installation of

Organic Waste Converter (OWC) and installation of gas

bank/infrastructure for LPG piped gas line was approved. On the

basis of such a permission/DP, approval for building plan and

building license from BBMP was sought for;

r) DP permitting scheme of development for the entire project is far

greater than the extent for which EC is obtained;

s) The impugned EC dated 10.01.2018, for the construction project,

is, for a total built up area of 128193.9 Square Meters. However,

permission/DP issued by respondent-4 (BDA) permitting scheme of

development, is a result of altered project with change in the scope

and configuration which is different from the project conceived by

PP in terms of EC dated 10.01.2018. The following table with facts

and figures will explain the above said facts:

Sl Particulars Area measurement in Area measurement in

No. sq. meters based on sq. meters based on
Environment Development Plan (DP)
Clearance

1. Area 1,28,193.9 (Excluding 2,35,076.81

Non-FAR Area) (FAR+Non-FAR)
2. Number of 655 688
units/
Apartments
3. Total number 877 758
of parking
spaces
4. Total number 2 basement floors + 2 basement floors + GF +

24
 of floors GF + 20 Upper floors 20 upper floors + terrace
floor
5. Difference in altered project (area, scope and configuration) for
which NO Environment Clearance is obtained).
Total area permitted (based on DP minus area approved by EC):
235076.81- 128193.9=106882.91 Sqm.

t) There is apparent violation of Condition no. 46 of EC which

specifically states that construction activity shall be strictly in

accordance with approved site plan/layout drawing annexed to the

Environment Clearance (Conceptual Plan submitted to SEIAA,

Karnataka is at page no. 57/annexure-A/3);

u) Based on altered project, permissions/DP was obtained even

without EC for such altered project in the scope and configuration.

Furthermore, there is apparent violation of Condition no. 5 of

General Conditions of EC;

v) BBMP has not granted any sanction of building plan and building

license, on account of above mentioned contraventions and non-

compliances of provisions of Zoning Regulations, RMP-2015, KTCP

Act, 1961 and directions issued in Forward Foundation & Ors.

(supra). BBMP has already issued ‗Show Cause Notice-cum-Stop

Work Notice‘ dated 13.07.2018;

w) There is non-compliance of provisions of KTCP Act, 1961 and

Section 505 (ii) of KMC Act, 1976;

x) In addition to violation of Condition no. 45 of EC, there is apparent

violation of Condition no. 46;

y) DP dated 05.03.2018 issued by BDA is at variance with the

conceptual plan/drawings (Annexure-A/3, page no. 57) submitted

by PP before SEIAA, Karnataka for obtaining EC. Therefore, PP has

25
 misrepresented before different public authorities and obtained

different permissions;

z) It is clear that facts stated at Serial no. 16(c) before KSPCB were

contrary to requirements at Condition no. 6 of EC. PP has

furnished wrong information before KSPCB. In fact, proposed

developments are contrary to all the above said conditions of EC.

Constructions carried out in the project land, including ground

leveling, are contrary to Condition no. 49 of EC as well as Section

300 of KMC Act, 1976.

Reply of respondent-7 (KSFES):

18. Respondent-7, i.e., KSFES in reply dated 31.01.2019, has stated,

in brief, as under:

a) M/s. Wonder Projects Development Private Limited made an

application dated 07.11.2017 to the Office of Director General of

Police, Commandant General, Home Guards and Director of Civil

Defence and Director General, KSFES for issue of NOC for a multi-

storied residential apartment building (Block-1) at Survey nos.

61/2, 62 and 63/2 of Kasavanahalli Village, Varthur Hobli,

Bengaluru East Taluk;

b) Pursuant to the said application, Chief Fire Officer, Bengaluru East

Zone, (KSFES) inspected the site on 29.11.2017 and scrutinized

drawing pertaining to Survey nos. 61/2, 62 and 63/2,

Kasavanahalli Village, Varthur Hobli, Bengaluru East Taluk.

Inspection Report was prepared and finalized on 04.12.2017. The

said Final Inspection Report sent to Director General of Police and

Director General of KSFES, and received thereat on 07.12.2017.

26
 The said Report had opined that Builder has incorporated all the

required Fire Preventions, Fire Fighting and Evacuation Measures

in the drawing as per Part 3 and 4 of Fire and Life safety of NBC

2016 (National Building Code) in the plan and showed on the land.

Hence, there was recommendation to issue ―No Objection

Certificate‖ for construction of high rise residential building, Block-

1, to PP with three Towers i.e., Tower A, B and C at Survey nos.

61/2, 62 and 63/2 of Kasavanahalli Village, Varthur Hobli,

Bengaluru East Taluk;

c) PP submitted another application dated 07.03.2018 in the Office of

Director General of Police, Commandant General, Home Guards

and Director of Civil Defence and Director KSFES for issue of NOC

for a multi-storied residential apartment building at Survey nos.

61/2, 62 and 63/2 of Kasavanahalli Village, Varthur Hobli,

Bengaluru East Taluk. This was for construction of Phase-2

building;

d) Pursuant to the said application, Chief Fire Officer, Bengaluru East

Zone, KSFES inspected the site on 19.03.2018 and scrutinized

drawing pertaining to Survey nos. 61/2, 62 and 63/2

Kasavanahalli Village, Varthur Hobli, Bengaluru East Taluk. The

Inspection Report was prepared and finalized on 20.03.2018. Final

Inspection Report sent to Director General of Police and Director

General of KSFES, and received on 21.03.2018. The said Report

opined that PP has incorporated all the required Fire Preventions,

Fire Fighting and Evacuation Measures in the drawing, as per Part

3 and 4 Fire and Life safety of the NBC 2016 (National Building

Code), hence, recommended issue of NOC for construction of high

27
 rise residential building comprising Block 2 with 4 Towers, i.e.,

Towers A, B, C & D joint, at Survey nos. 61/2, 62 and 63/2 of

Kasavanahalli Village, Varthur Hobli, Bengaluru East Taluk;

e) After recommendation dated 04.12.2017 for Phase-1 building was

made, PP paid statutory fees for NOC dated 22.12.2017.

Subsequently, Office of Director General of Police and Director

General, KSFES issued NOC bearing No. GBC(1) 336/2017 (Phase-

1) for construction of high rise building with 3 Towers, Towers A, B

and C at Survey nos. 61/2 and 62 and 63/2, Kasavanahalli Village,

Varthur Hobli, Bengaluru East Taluk, on 22.12.2017, addressed to

Commissioner, BBMP and copy marked to PP;

f) After recommendation dated 20.03.2018, PP paid statutory fees for

NOC dated 17.03.2018 and subsequently, Office of Director

General of Police and Director General of KSFES issued NOC

bearing No. GBC(1)141/2018 (Phase-2) for construction of high rise

building with 4 (four) Towers, i.e., Towers A, B, C and D hearing

Survey No. 61/2 and 62 and 63/2, Kasavanahalli Village, Varthur

Hobli, Bengaluru East Taluk on 20.04.2018, which was addressed

to Commissioner, BBMP and copy marked to PP;

g) Respondent-7 has examined sketches, land, plans in respect of

Building/Tower and incorporated Fire Prevention, Fire Fighting and

Evacuation Measures, along with plans and also NOC issued with

terms and conditions, which is consistent as per NBC 2016 and

also Part 4 Fire and Life Safety and Local Zoning Regulations;

h) Respondent-7 would inspect such constructed high-rise buildings

physically and Clearance Certificate would be issued after

28
 completion of Project, as per NOC and terms and conditions, along

with Local Zoning Regulations and NBC 2016 Part 3 and 4, and,

after strict compliance of the aforesaid statutory requirements. If

there is compliance in the strict sense, only then ―Clearance

Certificate‖ would be issued and addressed to Commissioner for

BBMP;

i) Respondent-12 i.e. Godrej Private Limited has not applied for any

NOC for high rise building and there is no pending application of

the firm;

j) Fire and Emergency Department does not deal with pollution and

environmental issues, No Development Zone, Eco-system, No

Deposition of pollution, Land Scope, Revenue aspect, Rajakaluve,

EC, Lake ‗buffer zone‘, Eco-system and overall environmental

aspects, etc. Respondent-7 is concerned with the limited scope of

Fire and Safety, for which NOCs, subject to compliance of

conditions were issued.

Reply of PP (M/s. Wonder Project Private Limited) (Respondent-11):

19. Combined reply dated 19.05.2018 on behalf of respondents-11 and

12 has been filed. It is stated therein that Godrej Group was established

in 1897 and comprised of a varied business portfolio including real estate

development etc. Respondent-12 brings Godrej Group philosophy of

innovation, sustainability and excellence to real Estate Industry.

Development undertaken by respondent-12 combines a 121 years of

legacy of excellence and trust with a commitment to cutting-edge design

and technology. Respondent-12 is currently developing residential,

commercial and township projects which are spread across,

approximately, 14 million square meters (151 million square feet) in 12

29
cities. It has contributed immensely to environmental sustainability and

received over 200 awards, in past 5 years. Respondent-11 is an

Associate Company of respondent-12, involve in Real estate activities

with own or leased property, therein indulging in buying, selling, renting

and operating of self-owned or leased real estate such as apartment

buildings and dwellings, non-residential buildings, developing and sub-

dividing real estate into lots etc. The appeal in question is gross abuse of

process of law, with a view to harass and browbeat respondents-11 and

12, alleging frivolous and vexatious grounds, filed purposely with

fraudulent intention, presenting incorrect and misleading facts so as to

cause damage to them. Replying on the merits of the case, in brief,

respondents-11 and 12 have said as under:

a) Respondent-11 is lawful owner of land bearing Survey nos. 61/2,

62 and 63/2, situated at Kasavanahalli Village, Varthur Hobli,

Bengaluru, admeasuring 12 acres and 18 guntas (50382.92 square

meters). The total land, as per RMP-2015 falls within Industrial (Hi-

Tech) Zone. In view of the aforesaid plan, land in question is fit for

urbanization and hence not an eco-sensitive/eco-fragile zone. The

construction would not cause any adverse impact on the

environment;

b) A portion of total land is abutting ―Kaikondarahalli Lake‖;

c) There is only one primary Rajakaluves/nalla flowing through

portion of Survey no. 63/2 which is specified as ‗Kharab‟ in all

Revenue documents;

d) There are two tertiary nallas and one secondary nalla, flowing

outside total land of disputed project;

e) PP has obtained approval for change of land use from Industry (Hi-

Tech) to residential from BDA (respondent-4). PP is required to

30
 fulfill conditions of EC dated 10.01.2018 specially relating to

maintenance of ‗buffer zone‘. In compliance thereof, ‗buffer zone‘ is

to be maintained;

f) Out of total land, measuring 50382.92 square meters, construction

area is only approximately 10842 square meters. The coverage

provided as per Zonal Regulation is 50% whereas PP, after

adequately leaving ‗buffer zones‘, as required in EC dated

10.01.2018, has achieved a ground coverage of only 22.66%;

g) The Plan prescribed maintenance of a ‗buffer zone‘ of 30 meters

distance around the lake which has been extended to 75 meters

vide judgment of this Tribunal in Forward Foundation & Ors.

(supra). Vide Clause 47 of EC, PP is to ensure that existing water

body, canals, Rajakaluves and other drainage and water bound

structures are retained unaltered with due ‗buffer zone‘. Hence

adequate safeguards have been provided for compliance of existing

laws vide EC dated 10.01.2018;

h) Construction shall be undertaken on the area which does not fall

under ‗buffer zone‘;

i) Appellant has no locus standi to maintain appeal as is neither an

aggrieved person nor otherwise has any interest in the subject and

it is only to gain publicity, the present appeal has been filed; he has

not approached Tribunal with clean hands and misrepresented

facts;

j) It is not correct that project is being constructed in an inherently

eco-fragile environment within the ‗buffer zone‘ of the lake,

Rajakaluves and environmental load of population envisaged to

stay and the same would be more than what the ecosystem can

withstand;

31
k) It is not correct that there are three Rajakaluves flowing through

the project; in fact there is only one Primary Rajakaluves flowing

through portion of Survey no. 63/2 and one Secondary and two

Tertiary Rajakaluves flowing outside the total land;

l) It is incorrect that PP undertook construction within the ‗buffer

zone‘ and that too without a sanctioned building plan and without

consent obtained from respondent-9 (BWSSB); in fact, PP did not

commence construction before issue of Prior EC but was only

taking preparatory steps towards contouring and landscaping with

a view to maintain greenery on the total area and prepare for

upcoming monsoon;

m) Form 1A submitted by PP for grant of EC is only an application

expressing desire of promoter to commence a particular project. It

is neither conclusive nor decisive on the project. It is only a guiding

factor;

n) Appraisal Committee of respondent-3 i.e. SEIAA, Karnataka,

consisting of Experts from different fields, before grant of EC,

circumspectly assessed Form 1A, conducted due site inspections

coupled with independent and thorough evaluation and decided

necessary parameters and safeguards for the project

independently. Only after fully being satisfied, EC was granted;

o) Appellant has wrongly stated that project site falls within ‗buffer

zone‘ of ―Kaikondrahalli Lake‖ or within ‗buffer zone‘ of one Primary

or two Tertiary Rajakaluves. The fact is that out of total land,

measuring 50382.92 square meters, construction area is only

approximately 10,842 square meters;

p) PP, in due compliance with conditions of EC and Tribunal‘s

judgments in Forward Foundation & Ors. (supra) is performing

32
 its work. ‗Buffer zones‘ have been maintained as ‗Green Belt‘ in

terms of conditions of EC and will be treated as ‗No Construction

Zone‘ in Form 1;

q) PP at Sl. no. 1.22 has clearly said ―a primary nalla connecting to

―Kaikodrahalli Lake‖ is crossing across the project site. 50 m

buffer on both side are provided as per NGT specifications‖. In

answer to Sl. no. 2, under the head ―Environmental Sensitivity‖, PP

has said ―Kaikondrahalli Lake exists at a distance of 75m.

Harlur/Kasavanahallil Lake at a distance of 0.800km (800

meters)‖;

r) It is not correct that project will be constructed in an inherently

Eco-Fragile environment, within ‗buffer zone‘ of lake and

Rajakaluves;

s) There is no concealment or wrong information on the part of PP;

t) Appraisal Committee/SEIAA does not grant EC on the basis of

information provided in Form 1A but Experts of Committee assess

the information contained in Form 1A, conduct due site inspections

coupled with independent and thorough evaluation, decide

necessary parameters and safeguards for a given project,

independently, and only thereafter grant EC;

u) The project over total land is a single/independent project,

comprising of two phases. No earth will be excavated within ‗No

Development Zone‘ i.e. ‗buffer zone‘ of lake or Rajakaluves. It is

incorrect that the area would be raised within ‗buffer zone‘ or lake

or Rajakaluves. It is also not correct that PP would dam and create

an embankment in catchment area, alter natural flow of lake or

Rajakaluves affecting Eco-system of water bodies. In fact,

excavation necessary for construction of project, will be carried

33
 outside ‗buffer zone‘ of lake and Rajakaluves, after obtaining

necessary approval;

v) The photographs placed before Tribunal by appellant do not convey

correct position in as much as PP was only undertaking

preparatory steps for contouring and landscaping, carrying out

plantation and maintaining greenery in the total area. This was to

avail benefits of upcoming monsoon;

w) It is trite to state that although total area falls under the ‗buffer

zone‘, no construction will be carried out in the said ‗buffer zone‘;

x) PP had sought permission to meet water requirements through

BWSSB and Bore-well. However, vide notification dated

20.08.2016, concerned authority restricted erection of new Bore-

wells. This is why the information furnished in the Form 1 did not

indicate encountering of water demand through Bore-well;

y) All permissions, approvals, sanctions required under KTCP Act,

1961 was applied by PP, supported with requisite

information/documents conforming the compliance with the

provisions of KTCP Act, 1961.

z) Section 505 of KMC Act, 1976 is not attracted in the present case;

aa) Section 300 of KMC Act, 1976 is also not attracted as no work has

commenced in the present instance;

bb) Respondent-11 has applied for necessary consent under Section 25

of Water Act, 1974 as well as sanction plans and undertakes to

commence construction work upon obtaining all necessary

approvals from the statutory authorities;

cc) EC has been granted by concerned authority, after

recommendation being given by an Expert Committee;

34
 dd) It is correct that leveling of excavated soil cannot be permitted in

‗Buffer Zone‘. However, PP is not carrying out as on date, and,

undertake not to carry out, any construction within ‗Buffer Zone‘;

ee) Appellant has not placed on record any Expert Report or document

to substantiate his claim. Only on the basis of surmises and

conjectures, leveled false allegations upon respondents-11&12.

Appellant‘s pleadings in Rejoinders:

Rejoinder filed by the appellant in reply to the counter affidavit of

MoEF&CC (respondent-1)-

20. Since in the counter affidavit of respondent-1, facts relating to

statutory enactments were given, therefore, nothing has been said by

appellant in this regard. The only other objection raised in the reply of

MoEF&CC was in respect of limitation that appeal is barred by limitation.

Appellant has contradicted the objection in rejoinder affidavit and stated

that he has filed appeal within 90 days and, therefore, Tribunal has

power to condone delay. Besides, it is also stated that EC dated

10.01.2018 granted by SEIAA, Karnataka was not uploaded till the date

of filing of rejoinder, therefore, limitation did not commence in the light of

Tribunal‘s Judgment in Appeal No. 39/2012, Save Mon Region

Federation and Lobsang Choedar vs. Union of India and Ors.

21. Since delay has already been condoned by Tribunal, and that has

not been challenged by any party in any superior Forum, therefore, that

issue has attained finality and, we are skipping to mention further

pleadings contained in this rejoinder, relating to delay.

Rejoinder in reply to composite counter affidavit of PP:

22. Appellant has stated that BBMP (respondent-5) has already passed

Provisional Order dated 06.06.2018 and Confirmation Order dated

35
22.06.2018 under Sections 321 (1) and (2) and 321 (3) of KMC Act, 1976,

respectively, to demolish structure and buildings raised by PP on

disputed site and these orders are on record, filed along with MA No.

1063/2018.

23. It shows that construction raised by PP was illegal. Consequently,

BBMP be allowed to proceed to execute aforesaid orders. Further,

illegalities committed by PP are also demonstrated by Commissioner,

BBMP in Show Cause Notice-cum-Stop Work Notice dated 13.07.2018

which also fortifies complaint of applicant that project in dispute is illegal

and in violation of environmental laws. The Building Plan of PP includes

construction of drive way of 12 meters, passing through Primary nalla

falling inside 50 meters buffer line, which is illegal and impermissible.

RMP-2015 is one of the protections relating to ecology and environment

and has to be dealt with in consonance with Statutes relating to

environment which include Water Act, 1974, EP Act, 1986, CGWA

Guidelines, EIA 2006 etc. as also judgments of this Tribunal and

Supreme Court on environmental laws. The ‗buffer zone‘ area, stated in

RMP-2015, having been expanded by Tribunal vide judgment Forward

Foundation & Ors. (supra), observing that any violation of such ‗buffer

zone‘ would cause harm to environment and hydrology, has to be obeyed

in words and spirit and cannot be violated. PP commenced construction

work illegally with no regard to ecology, dwelled soil around

Rajakaluves/nallas and also to block their natural flow. DP relied by PP

shows that there are definite concrete constructions within both, the

lakes and Rajakaluves ‗buffer zones‘ including fire drive way which

passes along and across Rajakaluves. PP has obtained EC by

misrepresenting facts. Photographs (annexure A/6 to appeal) show that

‗buffer zones‘ are being completely violated with soil being excavated

36
around it to change natural course of water of nallas. This is

corroborated by DP annexed by PP (annexure R/3 to his reply). Replying

to question of locus standi/aggrieved in the matter, it is said, where

substantial question of environment has arisen and a person has

obtained some permission/clearances from environment departments by

misrepresentation of facts and likely to cause damage to environment,

gives adequate locus standi to appellant to bring dispute before Tribunal.

Even otherwise, appellant being resident of the same planning area no.

‗3.18 Begur‘, has a right of clean and decent environment, maintenance

of ecologically fragile area, has a substantive interest in dispute, hence

objection against locus standi of appellant is misconceived. Tribunal‘s

judgment in M.A. No. 49/2013 in OA No. 26/2012, Goa Foundation &

Another vs. Union of India & Others has said that an ―aggrieved

person‖ cannot be confined within the bounds of a rigid formula. Its

scope and meaning depends upon diverse facts and circumstances of

each case, nature and extent of appellant‘s interest and nature and

extent of prejudice or injury suffered by him.

24. Reply in rejoinder affidavit relating to limitation is being skipped

since after disposal of delay condonation application, it is not relevant for

deciding the matter on merits.

25. On the facts of area in question owing to its proximity to lake,

Appellant says that presence of multiple ‗buffer zones‘ within the area

relating to lake and Rajakaluves, show fragility associated with such land

and eco services which provides for the planning area, any detriment to

natural position of such zone will further block already suffocating city of

Bengaluru etc.; PP has referred to some other constructions in the area

in question. Appellant says that neither disputed construction is valid

37
nor will get any validity on the ground that there are some other

constructions existing in the area; Construction activities sproceeded

unabated under the garb of contouring and landscaping with a view to

maintain greenery, is nothing, but a culpable exercise to defeat the

specific prohibition and environment laws, hence impermissible; the

construction activities of PP by building a ―Model Flat‖, with area 2500

square feet, excavation work and dredging of soil within ‗buffer zone‘,

though sought to be explained as preparatory steps towards contouring

and landscaping but ignores the fact that all these activities come within

the meaning of ―construction‖ and that being so, in ―No Development

Zone‖, cannot be said to be valid in any manner; the term ―construction‖

has been considered in Forward Foundation & Ors. (supra) and

Tribunal has held that it covers clearing of land, excavation of land etc.,

The activities undertaken by PP, as evident from the photographs,

(Annexure A/6 to appeal) are self-speaking and demonstrate

impermissible, illegal activities of PP in prohibited area; PP has

incorrectly stated that Form 1A is merely a guiding factor in as much as

it is the very foundation for grant of ‗Prior EC‘ and is mandatory under

the provisions of EIA 2006 read with EP Act, 1986; SEIAA, Karnataka

has acted illegally by failing to discharge their duties of not having

verified the information supplied by PP in form IA and instead

mechanically acting on the said information and granting EC; PP has

pleaded in contrary manner, in as much as on one hand it has been

admitted that ―Kaikondarahalli Lake‖ abuts the land, being part of project

in dispute, while at another place, it has been said that the lake is

situated at a distance of 75 meters from project land; further PP has not

disclosed in its application, submitted for EC, that it would develop

‗buffer zone‘ around Primary Rajakaluve as a drive way though it is so

38
mentioned in DPs which has been filed by PP himself as Annexure R/3 to

his reply. Construction and development of drive way amounts to

construction in ‗buffer zone‘ around primary Rajakaluve and is

impermissible; the magnitude of project comprising of a built up area of

1,28,193.9 square meters as disclosed by PP in Form 1A, construction of

655 units in 2 Residential Blocks having two basements with Ground

Floor and 20 upper floors, parking for 877 cars, water consumption of

534 KLD (including fresh water), waste water discharge of 482 KLD in an

inherently eco-fragile environment within the ‗buffer zone‘ of lake and

Rajakaluves is bound to put unsustainable environmental load of the

population and would damage Eco-system; the photographs (Annexure

A/6 to appeal) also show that soil around Rajakaluves has been

excavated to create embankment around the same and stop flow of

running water in such nallas which is illegal and contrary to what has

been claimed by PP before this Tribunal; the above work has been carried

out using heavy commercial vehicles; PP in the garb of contouring and

landscaping cannot indulge in activities which per se qualify as

―construction activities‖ prohibited in ‗No Development Zone‘ i.e. ‗buffer

zone‘ of wetland and Rajakaluves; the gathering of people in the

residential accommodations, sought to be constructed by PP, is huge and

as is disclosed by it at Sl. no. 28 at Form 1A that about 4014 people are

expected in the operation phase and collection of such a huge number of

person in an Eco-fragile land abutting the lake and Rajakaluves is bound

to cause serious damage to Eco-system of the wetland area; PP having

already caused damage to environment by proceedings with construction

activities illegally is also liable to pay environmental compensation on the

principle of ‗Polluter Pays‘; Development of land as Park or Open Space

39
would require leveling of land, concretization, embankment, structural

gates, benches etc. and the stand of PP otherwise is incorrect.

OA No. 281/2019-Pleadings:

26. This Original Application No. 281/2019 (hereinafter referred as

‗OA-1‘) was preferred vide application dated 28.02.2019 by a Trust

namely, Mahadevpura Parisara Samrakshane Mattu Abhivrudhi Samiti

for protection of ―Kaikondarahalli Lake‖, its ‗buffer zone‘, feeder

canals/nallas/Rajakaluves and the adjacent area; to restrain Shri

Ramesh Kumar (arrayed as respondent-10) from proceeding with

construction activities on the land, Survey nos. 71/1, 72/1, 72/2, 74/5B

and 73, admeasuring 5 acres 29 guntas, situated within the jurisdiction

of BBMP Ward No. 150, (Bellandur Ward), Mahadevapura Zone, Varthur

Hobli, Bengaluru. The project is bounded on eastern side by Survey No.

74/4A, West by ―Kaikondarahalli Lake‖, South by Survey no. 72/2 and

North by Survey nos. 7 and 6. The grounds of challenge, inter-alia, in

brief are, violation of Water Act, 1974, concealment of relevant

information showing construction in ‗buffer zone‘ of ―Kaikondarahalli

Lake‖; violation of Rule 14 of EP Act, 1986, Air Act, 1981 and failure to

obtain mandatory Consent to Establish and Operate the project, violation

of provisions of EP Act, 1986, Municipal Solid Waste Management Rules,

2016 (hereinafter referred to as ‗MSWM Rules, 2016‘), Public Trust

Doctrine, Encroachment of nallas/Rajakaluves; Omission to obtain

consent from Central Ground Water Authority (hereinafter referred to as

‗CGWA‘); violation of directions contained in judgment dated 04.05.2016

in Forward Foundation & Ors. (supra); raising of project in the

prohibited area, i.e., (i) the ‗buffer zone‘ of 75 meters from the periphery

of the lake; (ii) the ‗buffer zone‘ of 35 meters from the edge of either sides

40
of the secondary Rajakaluve/nalla; (iii) ‗buffer zone‘ of 25 meters on

either sides from the periphery of nallas (judgment in OA No. 125/2017

with 217/2017); (iv) Catchment area of the lake; (v) ‗buffer zone‘ of 30

meters from the periphery of the lake (as per RMP-2015) and, (vi) the

‗buffer zone‘ of 25 meters from the two secondary nallas/Rajakaluves (as

per RMP-2015) and violation of Tribunal‘s order dated 06.12.2018 in

Court on its own Motion v. State of Karnataka and Ors., OA No.

125/2017 decided 06.12.2018.

O.A. No. 602/2019-Pleadings:

27. This Original Application (hereinafter referred to as ‗OA-2‘) has

been preferred under Section 14 and 15 of NGT Act, 2010 by the same

applicant, H.P. Rajanna (appellant in Appeal No. 54/2018) in respect of

the same project of PP, M/s. Wonder Projects Development Private

Limited with the prayer that PP be stopped from construction of High

Rise Residential Apartment project in municipal Khata no. 4131, Survey

nos. 61/2, 62 and 63/2, Kasavanahalli village, Varthur Hobli, Bengaluru

East Taluk, Bengaluru district. It is further prayed that respondents-9

and 10, i.e., PP, be restrained from creating third party interest in any

manner, whatsoever, in respect of disputed project; direct SEIAA,

Karnataka to revoke EC in terms of Condition no. 5 of General Conditions

of the said clearance read with para 8(vi) of EIA 2006 for submitting false

information with regard to scope and configuration of disputed project;

direct KSPCB to take affirmative action in accordance with Condition no.

10 under item VIII, General Conditions of Consent to Establish, dated

12.10.2018; declare Building Plan and Building License bearing no.

BBMP/Addl. Dr/JD North/LP/0203/17-18 dated 30.08.2018 illegal,

invalid, nullity and inoperative and direct BBMP to revoke/cancel the

41
same; declare DP dated 05.03.2018 illegal, invalid, nullity and inoperative

and direct BDA to revoke/cancel the same; direct BBMP to execute

Confirmation Order dated 22.06.2018 for demolition of buildings raised

on premises in dispute abutting ―Kaikondarahalli Lake‖; direct

respondents to take adequate steps towards restoration of fragile ‗buffer

zone‘ of ―Kaikondarahalli Lake‖ as well as Rajakaluves and ‗buffer zones‘;

restore natural hydrology and natural water flow thereof; take penal

action and impose deterrent Environmental Compensation upon PP for

violation of conditions of EC dated 10.01.2018 and also to recover cost of

loss of ecological services and damage done to the environment and

ecology; direct penal action and inquiry against erring officials of BBMP

for sanctioning Building Plan and Building License dated 30.08.2018,

erring officials of BDA for granting DP dated 05.03.2018 by violating

directions under Section 5 of EP Act, 1986 read with Karnataka

Government‘s Gazette Notification no. FEE 316 EPC 2015, Bengaluru,

dated 19.01.2016.

28. Facts stated in OA-2 are broadly similar to those stated in Appeal

No. 54/2018 hence without repeating, we would give herein distinct and

additional averments contained in the application, in brief, as under:-

a) Applicant being a resident of Planning Area of 3.18 Begur, wherein

the present disputed project is sought to be launched, shares the

very same Eco-system and entitled to add for protection and

prevention of lake pollution and conservation of natural resources

including ‗buffer zones‘, in exercise of his rights and duties

mandated under Article 21, 51A(g) and 48A read with Article 243W

Schedule 12 of Constitution of India;

42
b) ―Kaikondarahalli Lake‖ is situated on Sarjapur Main Road in

Bengaluru city. It is spread over an area measuring 48 acres 23

guntas. In 2007, lake bed was a slushy malarial bed of sewage and

waste. Issues of encroachment, growth of unhealthy hyacinths and

release of sewage and untreated water into the lake had together

spelt the death knell for Eco-fragile lake. It is an urban biodiversity

hotspot. Lake once had dried up but turned into an unique

example of urban, common rejuvenated project. Local residents

and activist along with Municipal Authorities, collaborated and

restored lake to its once pristine state. Lake is thriving with new

species of flora and fauna as a result of concerted efforts of citizens

and officials of Municipal Corporation to maintain the lake.

c) As an urban biodiversity hotspot, lake has around 43 species of

birds, 26 species of reptiles and 3,000 plants comprising at least

33 varieties. It also has about 16 acres of Acacia trees on southern

side of the lake;

d) PP has undertaken construction activities on ‗buffer zone‘ of

ecologically sensitive ―Kaikondarahalli Lake‖. Project land is

directly abutting the said lake and construction would

detrimentally impact hydrology of lake and obstruct natural flow of

water therein, through feeder canals in respect of the said lake;

e) Permissions have been issued for creation of ramp and drive way

which would fall within 75 meters of ‗buffer zone‘ of lake. From DP

dated 05.03.2018, it is clear that there is a nalla passing through

adjacent land in Survey no. 57 and 25 meters buffer line for that

nalla, falls inside the disputed project. In this 25 meters ‗buffer

zone‘, permission for construction of 12 meters wide drive way to

43
 carry tremendous load of vehicles including 758 cars has been

allowed. Further installation of gas bank/infrastructure of LPG

piped gas line has also been approved. Drive way of 12 meters

wide continues and passes through primary nalla. Various

components of drive way also falls within 50 meters of ‗buffer zone‘

of Primary Rajakaluve (feeder canal) which is within the project

land;

f) DP also indicates another nalla in Survey no. 61/1, adjacent to

Survey no. 61/2 and 25 meters ‗buffer zone‘. In this 25 meters

‗buffer zone‘, permission for 8 meter wide Fire Driveway,

installation of an Organic Waste Convertor (hereinafter referred to

as ―OWC‖) and installation of gas bank/infrastructure for LPG

piped gas line has been approved. This is in violation of the

directions issued by Tribunal in Forward Foundation & Ors.

(supra);

g) The aforesaid constructions on ‗buffer zone‘ of lake and

Rajakaluves are in violation of para 4.12.2 of RMP-2015, which

reads as under:-

―4.12.2
(ii) Valley/drain
xxxxxxxxx
(iii). In case of water bodies a 30.00 m buffer of ‗no
development zone‘ is to be maintained around the lake
(as per revenue records) with exception of activities
associated with lake and thus buffer may be taken into
account for reservation of park while sanctioning plans.
xxxxxxxxxxx
Note:
Drains: The drains have been categorised into 3 types
namely primary, secondary and tertiary. These drains will
have a buffer of 50, 25 and 15m measured from the
centre of the drain respectively on either side.‖

44
h) It is also in violation of Zoning Regulations of RMP-2015, framed

under KTCP Act, 1961;

i) Two secondary and one primary Rajakaluves directly pass through

project site and disputed project site is directly abutting

―Kaikondarahalli Lake‖ and its ‗buffer zone‘;

j) The construction sought to be undertaken also violates Section 24

of Water Act, 1974 which reads as under:-

―24. Prohibition on use of stream or well for disposal of

polluting matter, etc. (1) Subject to the provisions of this
section-
(b) no person shall knowingly cause or permit to enter into
any stream any other matter which may tend, either directly
or in combination with similar matters, to impede the
proper flow of the water of the stream in a manner leading
or likely to lead to a substantial aggravation of pollution due
to other causes or of its consequences.‖

k) Rajakaluves act as feeder canals for flow of water from the

―Kasavanahalli Lake‖ to ―Kaikondarahalli Lake‖. Construction, if

any, raised on ‗buffer zone‘ of these feeder canals would impede

natural flow of water;

l) The construction sought to be raised is also in violation of Wetland

Rules, 2017 and judgment of Tribunal in Forward Foundation &

Ors. (supra). It also violates Rule 4 of Wetland Rules, 2017.

m) Construction activities in ‗buffer zone‘ and Rajakaluves also

violates specific condition in Part A, para 48 of EC dated

10.01.2018 which reads as under:-

―PART A-SPECIFIC CONDITIONS-

48. The Project Proponent shall leave a buffer of 75

meters from the Lakes, 50 meters from Primary
Rajakaluve, 35 metres from Secondary Rajakaluve and 25
metres from Tertiary Rajakaluve in accordance with the
order of the Principal Bench of Hon‘ble National Green

45
 Tribunal, New Delhi dated 4th May, 2016 in Original
Application No. 222 of 2014 in addition to sufficient buffer
from the other water bodies in accordance of law. The
buffer so maintained shall be developed as Greenbelt
planting with indigenous tree species such as Neem,
Akash Mallige, Mahagoni, Honge, KadambaFicus, etc. and
maintained as green belt. No construction activity shall
be undertaken in the said buffer zone.‖

n) EC dated 10.01.2018 says that PP is strictly bound by site

plan/layout plan submitted to SEIAA, Karnataka. Any change in

the scope of project would require a fresh appraisal by SEIAA,

Karnataka. The said conditions contain in Part A, para 46 and Part

B, para 5, reads as under: -

―PART A-SPECIFIC CONDITIONS:

46. The project proponent shall ensure that the
construction activity is undertaken strictly in
accordance with the approved site plan/ layout drawing
annexed to the Environmental Clearance letter. However,
it is subject to compliance to the provisions of local
authorities regarding setbacks, FAR etc. shall be adhered to.

PART B- GENERAL CONDITIONS:

5. In the case of any change(s) in the scope of the project,
the project would require a fresh appraisal by this
Authority.‖

o) PP, however, has disclosed different construction areas and

activities to SEIAA, Karnataka and KSFES as would be evident

from the following chart:-

“ Sr. Basis Form I and Inspection Inspection Report

No. Presentation Report by the by the Karnataka
submitted by Karnataka Fire Fire Deptt.
PP on the Dept. submitted Submitted on
basis of which on 07.12.2017 21.03.2018
EC was
granted (Oct,
2017)
1 Number Two (2) Towers One building i.e. One building i.e.
of i.e. Tower A and Phase 1 with 3 Block 2 with 4
Buildings Tower B towers i.e. A, B Towers i.e. Tower
and C A, B, C, D

46
 2 Number Tower A and B Tower A and C Tower A
of Floors
2 Basement, Each of 2 common Common basement,
Ground and 20 basements, common ground
Upper Floors common ground floor, common 1st
floor and 20 floor and 2nd floor
upper floors to 13th floor

Tower B Tower B, C and D

2 common Each of common

basements, basement, common
common ground ground floor,
floor and 19 common 1st floor
upper floors and 2nd floor to 20th
floor floors

p) The aforesaid chart shows that EC was granted for construction of

two towers, A and B, while in the inspection dated 07.12.2017,

KSFES refers to three towers, A, B and C in Phase-1 and in Report

dated 21.03.2018, it refers to four Towers, A, B, C and D in Phase-

2. The structure approved in EC dated 10.01.2018 and found

subsequently by KSFES show a clear deviation from the plan

submitted to SEIAA, Karnataka;

q) Similarly, construction area disclosed by PP to SEIAA, Karnataka is

different from what it is represented to BWSSB; as shown in the

following chart:-

― Sr. Basis Conditions approved Conditions of the

No. by the Karnataka NOC granted by the
State Level Impact Bangalore Water
Assessment Authority Supply and Sewerage
in the Environmental Board on 30.10.2018
Clearance dated
10.01.2018

1 Site area 50,382.91 sq. mtr 51,698.16 sq. mtr.

2 Total Built 1,28,193.9 sq. mtr 1,71,755.37 sq. mtr.

up Area ‖

r) PP, thus deliberately misrepresented before SEIAA, Karnataka

about construction area so as to bring project within Category ‗B‘

47
 though as a matter of fact, built-up area proposed was more than

150000 square meters, thus project would fall in Category ‗A‘. This

difference in Category would have required PP to submit an EIA

report to seek EC from MoEF&CC which it has failed and this

vitiates EC dated 10.01.2018;

s) PP commenced construction activities without obtaining requisite

statutory clearances, on account whereof, BBMP issued Provisional

Order under Section 321(1) and (2) of KMC Act, 1976 on

06.06.2018. It was highlighted therein that construction was

undertaken by PP without sanctioned Building Plan and Building

License hence it has violated provisions of KMC Act, 1976.

Thereafter, BBMP also issued a Confirmation Order under section

321(3) of KMC Act, 1976 on 22.06.2018 directing for demolition of

unauthorized construction raised on disputed project by PP. The

relevant extract of confirmation order reads as under:-

―In view of the aforesaid facts and details it has been fully
confirmed to me that the constructor of the building has
constructed the building on the land bearing Katha No.
4131, Sy. No. 61/2, 62, 63/2,
BBMP/Add.Dir/JD/NORTH/0203/ 2017-18 of Haralur
Village, Ward No.150, in violation of the provisions of the
Karnataka Municipal Corporations Act,1976 and building
bye laws. Therefore, it is hereby ordered to demolish the
building constructed deviating from the sanctioned plan and
in violation of the provisions of the Karnataka Municipal
Corporations Act, 1976 and the Rules forthwith and you have
received the Provisional Order no. A.E.E.
(MSD)/P.O./02/2018-19 dated 06/06/2018 and it is
informed that the confirmation order has been passed for the
building constructed unauthorizedly and illegally.

You are required to clear the building within 7 days from the
date of receipt of this Confirmation Order on your own at
your own cost, failing which, the same will be cleared by
BBMP and the expenditure incurring thereon will be
recovered from you.‖

48
t) Since, PP continued to violate law, Commissioner BBMP issued

notice dated 13.07.2018 and relevant extract thereof reads as

under:

―7. The Project Proponent has not submitted the mandatorily

required consent to Establish (CFE) from the Karnataka
State Pollution Control Board under the Water Act, 1974 and
also the mandatory NOC from the BWSSB as required under
the BBMP Bye Laws and that both the said mandatory
permissions are required to be submitted to the BBMP while
seeking approval for sanction of Building Plan and Building
License.

8. In fact, the ground position in the project lands discloses

that the project proponents have raised constructions of
Ground Floor and First Floor and have illegally and
unauthorizedly constructed model flat measuring 2500
square feet and there is ongoing constructions continuing in
the absence of any Building Plan and Building License from
the BBMP and even in the absence of written permission
from the BBMP for the purpose of putting up any
construction in the project lands. In fact, there is clear
violation of Section 300 of KMC Act. Therefore, the said
constructions in the project lands are completely illegal
and are required to be demolished.
…
11. Moreover, BBMP cannot issue building plan and building
license on basis of any type of permissions that are in
violation of zoning regulations i.e. Regulation No. 4.12.1 and
RMP-2015 framed under the provisions of the Karnataka
Town and Country Planning Act, 1961. Consequently, there
is non-compliance of the Karnataka Town and Country
Planning Act, 1961 and hence in view of Section 505(ii) of
KMC Act, 1976 BBMP shall not grant any permission,
approval or sanction under the KMC Act.‖

u) However, subsequently, without any change in the circumstances,

on 30.08.2018, BBMP issued Building Plan and Building License in

favour of PP despite the stand that application submitted by PP

was invalid and it (PP) acted in violation of statutory provisions by

raising constructions without permissions. This shows subsequent

management and collusion between PP and BBMP.

v) KSPCB issued ‗Consent for Establishment‘ on 12.10.2018 and ‗No

Objection Certificate‘ was issued by BWSSB on 30.10.2018.

49
 Sanctioning of Building Plan and Building License by BBMP and

DP by BDA prior to issue of mandatory prior Consent to Establish

under Section 25 of Water Act, 1974, is in violation of directions

issued by State of Karnataka under Section 5 of EP Act, 1986. The

directions of State Government are contained in Gazette

Notification dated 19.01.2006 and table 1, containing details of

authority concerned to whom the directions are issued, and

directions contained in column 3; Sl. No. 1 to 5 of the Table

extracted (relevant for the present case), read as under:-

― Table 1

Sl. Designation of the Authority Direction under section 5

No. issued with the direction under of Environment
section 5 of Environment (Protection) Act, 1986
(Protection) Act, 1986
1 The Commissioner, Bruhath Shall approve plan for
Bengaluru Mahanagar Palike construction of buildings and
(BBMP), N.R. Square, Bengaluru- development of layout in
560002 respect of activities listed in
2 The Commissioner, Bangalore Table-2 of this notification
Development Authority (BDA), T. only after production of
chowdaiah Road, Kumara Park copy of Consent for
West, Bengaluru-560020 Establishment (CFE) issued
3 The Commissioner, the under the Water
Bangalore Metropolitan Region (Prevention and Control of
Development Authority (BMRDA), Pollution) Act, 1974 by the
No. 1, All Askar Road, Karnataka State Pollution
Bengaluru-560052 Control Board for
4 The Commissioner of all the City establishment of sewage
Corporations in the State treatment plant of
appropriate capacity.
5 The chairman, Bangalore Water Shall provide water
Supply and Sewerage Board connection to the activities
(BWSSB), Cauvery Bhavan, covered under this direction
Bengaluru-560009 in Table-2 only after
production of copy of
Consent for Establishment
(CFE) issued under the
Water (Prevention and
Control of Pollution) Act,
1974 by the Karnataka State
Pollution Control Board for
establishment of sewage
treatment plant of ‖
appropriate capacity.

w) Part A, Clauses 47, 49 and 50 of EC dated 10.01.2018 restrained

PP from altering natural hydrology of water bodies passing through

project lands and the same read as under:-

50
 ―PART A-SPECIFIC CONDITIONS-

47. The existing water body, canals and Rajakaluve and

other drainage and water bound structures shall be
retained unaltered with due buffer zone as applicable and
maintained under tree cover.

49. The natural slopping pattern of the project site other

than the area excavated for the purpose of construction of
proposed building shall remain unaltered and the natural
hydrology of the area be maintained as it is to ensure
natural flow of storm water.

50. Lakes and water bodies within and/or at the vicinity of

the project area shall be protected and conserved.‖
(Emphasis added)

x) However, violating above conditions, PP has undertaken

construction. It directly obstructs the flow of water into

―Kaikondarahalli Lake‖ and thereby alters water regime and

ecosystem of wetland, resulting in loss of ecological services.

BBMP in its show cause notice has also highlighted that PP would

be raising ground level of project land by excavating large quantity

of earth inside prohibited area of ‗buffer zone‘ of lake, abutting

project lands and Rajakaluves, passing through project land, and

thereby damming and creating vital embankment within the

catchment area. From DP issued by BDA, it is evident that PP

would carry out construction within prohibited zones, as is evident

from following:-

i. In respect of ‗buffer zone‘ of the ―Kaikondarahalli Lake‖: PP

has sought to create a ramp and a driveway.

ii. In respect of ‗buffer zone‘ of Primary Rajakaluve: PP has

sought to construct a 12m drive way.

iii. In respect of ‗buffer zone‘ of Secondary Rajakaluve passing

through Survey no. 57: PP has sought to construct a 12

51
 meters wide drive way and installation of gas

bank/infrastructure for LPG piped line.

iv. In respect of ‗buffer zone‘ of Secondary Rajakaluve passing

through Survey no. 61/1: PP has sought to construct 8 meter

wide Fire Driveway, installation of an Organic Waste

Converter and a gas bank/infrastructure for LPG piped gas

line.

y) PP has sought to expand/diversify project by altering number of

units in violation of EC conditions, ‗Consent to Establish‘ and the

provisions of EIA 2006.

z) Similar constructions on the land comprising Survey nos. 71/1,

72/1, 72/2, 74/5B and 73 were found to have direct adverse

impact on the ecology of the area, by this Tribunal in OA No.

281/2019, Mahadevpura Parisara Samrakshane Mattu

Abhivrudhi Samiti v. Union of India & Ors., i.e. OA-1, in view of

Joint Committee‘s Report dated 11.04.2019 and 23.09.2019 and

facts stated therein would apply to the project in dispute of present

PP also.

29. In support of various grounds taken by applicant in OA-2, as

noticed above in brief, he has also relied on certain authorities of

Supreme Court and this Tribunal, i.e., N.D. Jayal & Anr. v. Union of

India & Ors., (2004) 9 SCC 362; Ritesh Tewari & Anr. v. State of UP

& Ors., (2010) 10 SCC 677; Himani Alloys Ltd. v. Tata Steel Ltd.,

(2011) 15 SCC 273; Divya Granites v. Karnataka State Pollution

Control Board, 2013 SCC Online NGT 49; Andhra Pradesh Pollution

Control Board v. B.V. Naidu, (2001) 2 SCC 62; Anirudh Kumar v.

MCD, (2015) 7 SCC 779; State of U.P. v. Singhara Singh, (1964) 4

52
SCR 485; Goel Ganga Developers India Pvt. Ltd. v. Union of India &

Ors., (2018) SCC Online SC 930; Forward Foundation & Ors. (supra);

Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496; M.K.

Balakrishnan & Ors. v. Union of India & Ors., (2017) 7 SCC 810 (2);

Diwan Singh & Anr. v. Union of India & Ors., OA No. 299/2016;

judgment dated 01.11.2016; Mahadevpura Parisara Samrakshane

Mattu Abhivrudhi Samiti v. Union of India & Ors., OA No. 281/2019;

M.C. Mehta vs. Union of India & Ors., (1987) 4 SCC 463; M.C. Mehta

v. Union of India, (2004) 12 SCC 118; M.C. Mehta v. Union of India,

WP(C) No. 4766/1985; order dated 11.07.2018.

Chronology of the proceedings in all three cases:

30. Appeal No. 54/2018 was filed along with MA No. 542/2018 (for

seeking condonation of delay) on 09.04.2018. It was registered on

12.04.2018 and placed before Tribunal on 13.04.2018. Notices were

issued to respondents on MA No. 542/2018. On 01.05.2018,

respondents-2 to 12 were represented and sought further time to file

replies which was granted. MA No. 542/2018 was heard on 01.10.2018.

The same was allowed, delay in filing appeal was condoned and,

thereafter, respondents were given liberty to file response to the main

case.

31. On 08.03.2019, OA No. 281/2019, i.e., OA-1 was filed. It was

registered and placed before Tribunal on 11.03.2019. Considering the

dispute, Tribunal vide order dated 11.03.2019 constituted a joint

Committee comprising of CPCB, KSPCB, BBMC and BDA (hereinafter

referred to as ‗First Joint Committee‘) and required it to submit report

within one month. An interim Report was submitted by First Joint

53
Committee vide letter dated 11.04.2019. A further report was submitted

by KSPCB on 27.04.2019.

32. The aforesaid report of first Joint Committee said that respondent,

Shri. Ramesh Kumar (PP in OA-1) had violated statutory provisions,

illegally constructed buildings in Survey nos. 71/1, 71/2, 72/2, 73 and

74/5B of Kasavanahalli Village, Varthur Hobli, Bengaluru, submitted

fabricated documents for getting power connection, has affected

environment, ecology and feeder canals of ―Kaikondarahalli Lake‖, is the

area which is Ecologically Sensitive Zone. Relevant extract of interim

report of First joint Committee, in para 2 to 7, read as under:

―2. As reported by the committee Kaikondrahalli Lake is spread over

in an area of 18 acres 18 guntas in Sy No 8 of Kainkondrahalli
village and 30 acres 5 guntas in Sy No 70 of Kasavanahalli village.
Three feeder canals drain water into the Lake. As reported the
Lake was rejuvenated during 2011 and as a part of rejuvenation
two sewers are laid for diverting the sewage flowing into the
Lake. The team while inspecting the area, have found the sewage
overflowing from the chambers of the sewer lines and on
intimation by the team, the same was rectified by the authorities
of BBMP.

3. The team has reported that Respondent No 10 has constructed

many small houses with an approximate built up area totaling
to 7755 Sq. Mts spread out in Sy No 71/1, 71/2, 72/2, 73 and
74/5B of Kasavanahalli village. All the houses are electrified and
an independent transformer is also provided by the Bangalore
Electricity Supply Company (BESCOM) authorities. The details of
the power supply sanctioned by the authorities are furnished in
the inspection report. The solid waste and the wet waste from
the houses are dumped adjacent to the lake. Construction
debris was also heaped close to the Lake. The houses are not
provided with sewers and sewage treatment plant resulting in
sewage stagnating in the feeder canals which are draining
into the Lake. The water supply to all the houses is through a
bore well sunk in the respondent's property.

4. The team on ascertaining the legality of the building‘s constructed

and power supply taken from the BESCOM found that the
Respondent has constructed the houses without obtaining
any sanction from BBMP as the area falls in ward number 150
of BBMP. The report further confirms that, the Town Planning
Division of BBMP in their letter dated 9.4.2019 stated that the
Respondent has not taken any sanction for the construction
of the buildings, hence the power sanctioned by the BESCOM
appears to be based on fabricated building plan documents.

54
 5. The team in its report has submitted that ADLR requested for
more time for submitting the survey sketch as they are deputed
for the general Elections. The inspection report of the joint
inspecting team along with seven annexure is enclosed to the
interim as document D-1.

6. The Assistant Director town planning, Mahadevapura zone has

written letter dated 10.4.2019 to the Executive Engineer BESCOM
for disconnecting the power to the building‘s purported to be
illegally constructed by Respondent 10 by fabricating documents
in support of building sanction. The copy of the letter written by
Assistant Director Town Planning BBMP is enclosed as document
D-2.

7. The joint inspection report reveals that, the Respondent has

violated all the statutory provisions and constructed building
in Sy No 71/1, 71/2, 72/2, 73 and 74/5B of Kasavanahalli
village. Further, fabricated documents were used for getting
the power connections to the buildings illegally constructed.
The above illegal activities of the Respondent are affecting the
Environment, Ecology and feeder canals of Kaikondrahalli Lake.
The area is in ecologically sensitive zone, will have an adverse
effect with these illegal activities. Once the ADLR submits the
detailed survey report of Kaikondrahalli Lake the final report will
be submitted for placing it before the Hon‘ble Green Tribunal,
Principal bench, New Delhi.‖

33. The Members of First Joint Committee who signed report,

comprised of the following:

1) Dr. Madhusudanan, Additional Director, CPCB;

2) Sri Sadiq Ahamed, Senior Environmental Officer, BNG-South,
KSPCB;
3) Sri Nagarajappa K.B, village Accountant, Bangalore East Taluk,
Taluk Office;
4) Sri Munireddy, Executive Engineer, Mahadevapura Division,
BBMP;
5) Sri K.Mahadevgowda, Executive Engineer, East Division, BDA.

34. In the report submitted by KSPCB, it was informed that a show

cause notice under Section 24 of Water Act, 1974 has already been

issued to Shri Ramesh Kumar (PP in OA-1) and a letter was issued to

Executive Engineer, BESCOM for disconnecting power supply to the

buildings constructed by Shri Ramesh Kumar. KSPCB thus, also

55
acknowledged that the buildings raised by Shri Ramesh Kumar (PP in

OA-1) are illegal.

35. Both these reports were considered by Tribunal on 09.05.2019.

Noticing observations made by First Joint Committee, Tribunal permitted

KSPCB to take further action which may include recovery of

compensation for the damage caused for restitution of environment, and

prosecution of persons responsible for violating the law. A further Action

Taken Report was required to be submitted within next two months.

Relevant extract of Tribunal‘s order dated 09.05.2019, in para 3, 4 and 5,

reads as under:

“3. Accordingly, a report has been received vide letter dated

11.04.2019 concluding as follows:-

“The joint inspection report reveals that, the Respondent has violated
all the statutory provisions and constructed building in Sy. No. 71/1,
71/2, 72/2, 73 and 74/5B of Kasavanahalli village. Further,
fabricated documents were used for getting the power connections to
the buildings illegally constructed. The above illegal activities of
the Respondent are affecting the environment, ecology and
feeder canals of Kaikondarahalli Lake. The area is in
ecologically sensitive zone, will have an adverse effect with these
illegal activities. Once the ADLR submits the details survey report of
Kaikondarahallilake and the final report will be submitted for placing
it before the Hon‟ble Green Tribunal, Principal Bench, New Delhi.”

4. Further report dated 27.04.2019 has been filed by KSPCB to the

effect that Board has issued show cause notice to the project
proponent for violation of Section 24 of the Water (Prevention and
Control of Pollution) Act, 1974 and also written a letter to the
Executive Engineer BESCOM for disconnecting the power to the
building constructed illegally, by fabricating documents.

5. In view of the acknowledged fact that the project has been

illegally constructed, the KSPCB may take further necessary
action which may include recovery of compensation for the
damage caused for restitution of environment and
prosecution of the persons responsible for violating the law.

Prayer of the applicant for closure order may also be considered. The
applicant will be at liberty to give an updated representation of the
action which is required to be focused for restoration of the
environment which may be expressly adverted to in the report.

56
 A report of further action taken may be furnished within two months
by e-mail at ngt.filing@gmail.com. The KSPCB may coordinate with
BBMP and Bangalore Development Authority.”
(Emphasis added)

36. Against order dated 09.05.2019, PP, Shri Ramesh Kumar preferred

Civil Appeal No. 5195/2019, Ramesh Kumar v. Mahadevpura Parisara

Samrakshane Mattu Abhivrudhi Samiti (MAPSAS) & Ors. which was

dismissed by Supreme Court on 05.07.2019. The order reads as under:

“We find that the order passed by the Tribunal is absolutely proper.
Thus, we are not inclined to interfere with the impugned order
passed by the Tribunal. The civil Appeal is, accordingly, dismissed.

Pending interlocutory application(s), if any, is/are disposed of.”

37. Against order of KSPCB that construction of PP, Shri Ramesh

Kumar was illegal, he filed Appeal No. 23/2019 before this Tribunal,

which was disposed on 02.08.2019 and relevant extract of order reads as

under:-

“3. On being asked, learned counsel fairly accepts the appellant

does not have any sanction for the construction of any
building nor any sewerage system.

4. We are thus unable to grant any relief in view of the

construction of the appellant being without any sanction plan
and in view of the finding in impugned order that the sewage
was flowing from the house of the appellant into the open
drain which is undisputed. The appellant could have approached
the State PCB if no notice was served or if the allegations in the
impugned order are disputed.

5. Accordingly, while declining to interfere in the appeal, we

make it clear that it is open to the appellant to approach the State
PCB to show that the findings in the impugned order are incorrect
and that the appellant has not violated the pollution norms.”
(Emphasis added)

38. On 08.07.2019, Appeal No. 54/2018 was directed to be listed with

OA No. 281/2019 in view of the statement made by counsels for parties

that the lake to which construction disputed in Appeal No. 54/2018,

abutting, is a matter of consideration in the said OA wherein issue is

regarding ―buffer zone of the lake‖.

57
39. Appellant- H.P. Ranjanna who had filed Appeal No. 54/2018 also

filed OA No. 602/2019, i.e., OA-2 which was registered on 17.07.2019

and considered by Tribunal on 19.07.2019. Noticing contents of the

issues raised by applicant, Tribunal constituted a Joint Committee

comprising of CPCB, Karnataka SEIAA and KSPCB as also M/s. Wonder

Projects Development Private Limited, i.e., PP and its holding company

M/s. Godrej Properties Limited (hereinafter referred to as ‗the Second

Joint Committee‘). KSPCB was made nodal agency for co-ordination and

compliance. Relevant extract of order dated 19.07.2019 reads as under:

“2. According to the applicant, the project is in prohibited area of

buffer zone of the lake and the Rajakaluves crossing the
project lands. The area is eco-fragile zone. Environmental
Clearance was granted on 10.01.2018 against which an appeal is
pending and is fixed for 13.08.2019. The Environmental Clearance is
in violation of order of this Tribunal dated 04.05.2016 in O.A. No.
222/2014, Forward Foundation vs. State of Karnataka and Ors.
against which an appeal was decided by the Supreme Court vide
judgment dated 05.03.2019 in Civil Appeal No. 5016/2016, Mantri
Techzone Pvt. Ltd. vs. Forward Foundation &Ors.

3. In view of above, let a factual and action taken report in the

matter be furnished by joint Committee representing Central
Pollution Control Board (CPCB), Karnataka State Environment
Impact Assessment Authority (SEIAA), Karnataka State
Pollution Control Board (KSPCB), Wonder Projects Development
Pvt. Ltd. and Godrej Properties Ltd. The SPCB will be the nodal
agency for coordination and compliance. The report may be
furnished within one month by e-mail at judicial-ngt@gov.in.”
(Emphasis added)

40. The names of PP & M/s. Godrej Properties Limited, it appears were

wrongly added, hence IA No. 439/2019 was filed in OA No. 602/2019

seeking modification of order dated 19.07.2019 by deleting above two

names from Joint Committee and for further direction. It was considered

on 29.07.2019. The names of PP, i.e., M/s. Wonder Projects Development

Private Limited and M/s. Godrej Properties Limited were deleted.

Applicant, however, also objected to inclusion of SEIAA, Karnataka and

KSPCB as members of Joint Committee but that was rejected. However,

58
Tribunal added a representative of MoEF&CC as part of Second Joint

Committee. Thus, Second Joint Committee came to be comprised of

CPCB, SEIAA, Karnataka, KSPCB and a representative of MoEF&CC.

41. Against Tribunal‘s orders dated 19.07.2019 and 29.07.2019 passed

in OA No. 602/2019, Applicant-H.P. Rajanna filed Civil Appeal No(s).

7255-7257-2019 but the same was dismissed by Supreme Court vide

order dated 20.09.2019. Order reads as under:

“Heard the learned Senior Counsel appearing for the appellant.

We do not find any reason to interfere with the impugned orders
dated 19.07.2019 and 29.07.2019 passed by the National Green
Tribunal, Principal Bench, New Delhi.
Accordingly, the appeals are dismissed.
Pending application stands disposed of.”
(Emphasis added)

42. First Joint Committee submitted final report dated 18.09.2019,

which was received by Tribunal through Member Secretary, KSPCB‘s

letter dated 23.09.2019 (hereinafter referred to as Report dated

‗18.09.2019/23.09.2019‘). The report says that Department of Survey,

Settlement and Land Records and Revenue Department submitted a

detailed survey report of ―Kaikondarahalli Lake‖ buffer area and found

following survey numbers adjoining the said lake :

― S.No. Village Survey Numbers

1 Kaikondrahalli, Sy. Nos. 3, 5, 6, 7, 9, 10, 11 and 14
Varthur Hobli,
Bangalorek east Taluk
2 Kasavanahalli, Sy. Nos. 39, 40, 62, 63, 68, 69, 71,
Varthur Hobli, 72 and 73
Bangalore east Taluk ‖

43. The findings of First Joint Committee in respect of existing

properties in ―Kaikondarahalli Lake‖ buffer area and violations noticed

are as under:

59
― S. Village Sy No. Activity Violation of Buffer
No.
3 Vacant site No Violation
5 Vacant site No violation
6 Grave Yard Not a permitted
activity
7 Vacant Site No violation
A 8 Establishing cross road, Portion of lake area
Commercial buildings where is encroached
Ananda Sweet and Nanda‘s
Multicusine, Sri Rajrajeshwari
condiments shop, 3M Car Care
and Bengaluru fruits and
vegetables shop
9 Renuka High School with play Not a permitted
ground and toilet, Sports Centre, activity
Raksha Car service, Residential
building and Private car service
garage in buffer zone.
Kaikondrahalli

10/3 Private grocery shops and Not a permitted

commercial establishment in the activity
buffer zone
11 Kidzee School and cross road Not a permitted
established activity
11/2 Sri Mitra Builders & Developers, The project
established residential authorities have
apartment by name ―Sri Mitra established,
Spring Valley‖ swimming pool, club
house and approach
road in the lake
buffer area, which is
not permitted
activity.
11/2 ALPS Prime Spaces Pvt Ltd, South east portion of
established residential the project area where
apartment by name‖ Alps estate STP and Exit gate
situated is in buffer
area, which is not
permitted activity.
14 Private building and commercial Not a permitted
establishment in the buffer area. activity.
B 39 C & D wastes are dumped and C & D waste debris
used for Solid Waste segregation shall be removed and
by BBMP contractor. solid waste segregation
has to be stopped by
BBMP. Not a
permitted activity.
40 There is no construction activity BBMP has to verify
except establishment of whether these shed
temporary labour shed after falling under buffer or
some distance. not.
Kasavanahalli

62 Godrej by name ―Wonder Sy No. 62 and 63

Projects Development Pvt. falls under Lake
Ltd‖ have obtained buffer area.
Environmental Clearance from As there is separate
SEIAA and consent for O.A 602/2019 on
establishment from KSPCB and this project, the
for establishment of residential same will be
apartment in Sy Nos. 61/2, 62 inspected by the
and 63/2. There is Nala within committee as per the
the project area which order dated
connects Kasavanahalli tank to 19.7.2019 and
Kaikondrahlli Tank. Project separate report will
under construction. be submitted by the
committee.
63/1 Vacant site No Violation

60
 68 SJR Enterprises Pvt. Ltd., Project authorities
established Residential have established rain
Apartment by name SJR Water water harvesting
Mark tank, park, tennis
court and portion of
drive way at 1 acre 17
guntas falling under
the buffer area.
69 There are some residential Not a permitted
building and establishment of activity
park and road in the lake buffer
area.
71/2 Residential sheet houses Not a permitted
constructed in the area of 1 acre activity
72/2 4 guntas and 1 acre 6 guntas is
vacant. Further, the owner of
73 the Sy No. 72/2 is started
leveling land adjoin to the lake.
Sheet building construction in Sy
No. 73 still exists.
71/1 Nala Khrab of Sy No. 71/1 of 1 Not a permitted
71/2 gunta, 71/2 of 1 gunta, 72/1 of activity
72/1 1 gunta, 72/2 of 2 guntas, 73 of
72/2 01 guntas, 74/5B of 3 guntas
73 and 74/5B of 4 guntas of Halla
74/5B Khrab is encroached and nala
area is being used for approach ‖
road.

44. First Joint Committee also observed that certain

properties/projects have already obtained EC from SEIAA, Karnataka and

Consent to Establish and Operate from KSPCB and those projects and

survey numbers are as under:-

“a) Sy. No. 68: SJR Enterprises Pvt. Ltd., established Residential
Apartment by name SJR Water Mark;

b) Sy. No. 11/2: Sri Mitra Builders & Developers, established

Residential Apartment by name ―Sri Mitra Spring Valley‖.

c) Sy. No. 11/2: ALPS Prime Spaces Pvt. Ltd., established

Residential Apartment by name ―Alps estate‖.

d) Sy. No. 61/2, 62 and 63/268: Godrej by name ―Wonder Projects

Developments Pvt. Ltd.‖- under construction‖

45. Thereafter, First Joint Committee made its

observations/recommendations as under:

“  There are three main feeder drains to the Kaikondrahalli

Lake, one on South Eastern side, second on Western
Side and third one towards Southern Side of the lake.
The total lake area is 48 acres 23 Guntas.

 The lake is rejuvenated jointly by BBMP & MPSMAS in

61
 the year 2011 with two sewage diversion lines to restrict
and stop the entry of untreated sewage, one on the western
side and another from southern side towards east. The
manhole champers provided in the diversion line, i.e., from
southern to eastern side was found overflowing and
untreated sewage is entering to the lake. Other than this,
there is no sewage entry into the lake as the diversion pipe
line provided towards eastern and western side of the lake.
BWSSB has to clear the diversion line to avoid the
overflowing of sewage from the manhole into the lake and
plan to have a terminal Sewage Treatment Plant to treat the
entire sewage and only to allow the storm water to the lake
through wetland.

 BBMP storm water drain, Mahadevapura Zone marked

the drain area which is originating from Kasavanahalli
Road to the lake from eastern side and work pertaining
to restoration of the drain is in progress.

 BESCOM authorities have disconnected the power supply to

residential houses in Sy. No. 71/1, 71/2, 72/1, 72/2,
74/5B and 73 of Kasavanahalli Village, Varthur Hobli,
Bengaluru East Taluk, Bengaluru urban district.

 The residential sheet houses constructed at Sy No. 72/2

coming under the lake buffer area are demolished. But,
residential houses constructed in Sy No. 73 are still exists,
the same need to be removed. Vacant area of the Sy. No.
71/2 and 72/2 adjoining to lake is being filled with new
soil for levelling.

 Sy No. 71/2: The land adjoining to lake is being used for

solid waste segregation by BBMP, the same need to be
stopped and segregation of waste are to be done at the
generation and collection point itself. The dumping and
segregation of solid waste at the lake belt to be stopped and
cleared.

 Sy No. 39: The land adjoining to lake is being used for

dumping of C&D waste, BBMP shall be directed to take
appropriate steps to clear the same.

 The temporary labour sheds constructed and existing in Sy

No. 40 need to be verified by the BBMP whether the sheds
are within Lake Buffer or not and to take appropriate action.

 The concern authorities shall be directed to take

appropriate action to clear the violations/encroachment
noticed in the existing properties & activities in the buffer
area.‖

46. On 03.02.2020, Appeal, OA-1 and OA- 2, all three matters came up

for hearing. By separate orders, all three matters were decided.

62
47. Appeal No. 54/2018 was allowed after considering the response of

respondents and First Joint Committee‘s reports dated 11.04.2019,

23.09.2019 and KSPCB‘s report dated 27.04.2019. It was held that

project in dispute was not permissible to be accepted; No EC could have

been granted permitting construction in buffer zone of lake and drains

merely by imposing condition that no construction will be raised. EC was

quashed and SEIAA Karnataka, KSPCB, BBMP and BDA were directed to

take further action in accordance with law.

48. OA No. 281/2019 was disposed of in the light of First Joint

Committee‘s interim report dated 11.04.2019, and final report dated

27.04.2019. Para 8 and 9 of order, disposing OA-1, read as under:

“8. We may also mention that by separate order passed today in Appeal
No. 54/2018, it has been held that no constructions are permitted in
the buffer zone and EC granted for a project covering buffer zone has
been quashed. We direct the BBMP, BDA, SEIAA, Karnataka and
State PCB to proceed in accordance with the factual report furnished
to this Tribunal noted above in respect of all the violators.

9. It is stated on behalf of the applicant that he has objections to some

constructions having not been declared illegal in the above report. To
that extent, we reserve liberty to the applicant to move the concerned
authorities in the first instance. Any such representation may be
looked into and decided within one month. If the applicant is still
aggrieved, he can take his remedies in accordance with law with
regard to either the present area or the one adjoining Kasavanahalli
lake.”

49. Another separate order was passed on 03.02.2020 in OA No.

602/2019. Relying on First Joint Committee‘s report dated 23.09.2019,

OA-2 was disposed of observing that by separate orders passed on the

same date in Appeal No. 54/2018 and OA No. 281/2019, the reports

dated 11.09.2019 & 23.09.2019 have been directed to be acted upon by

the concerned authorities, hence no further order is necessary as the

63
issue raised is already covered by the above orders, hence application

stands disposed of.

50. Aggrieved by judgment/order dated 03.02.2019, passed in Appeal

No. 54/2018, PP, M/s. Wonder Projects Development Private Limited

preferred Civil Appeal No. 1713/2020 under Section 22 of NGT Act,

2010 which was heard in Supreme Court on 02.03.2020. While issuing

notices, Court directed that the report of Second Joint Committee

appointed in OA No. 602/2019, i.e., OA- 2 shall be filed in the Registry of

Supreme Court. The order reads as under:

“Issue notice both on the present appeal as also on the application

for ad interim ex parte stay.

As prayed for, the respondents may file their respective reply

affidavit within a period of ten days. Rejoinder affidavit, if any, be
filed by the appellants within one week thereafter.

List the matter after three weeks.

In the meantime, the report in O.A. No. 602/2019 shall be filed in the
Registry of this Court.”

51. Consequently, Second Joint Committee submitted report dated

29.06.2020 in Supreme Court on 14.07.2020. The report shows that

KSPCB constituted a Committee of following members:

i.) Dr. Murali Krishna, Scientist-D, MoEF&CC,

ii.) Shri G. V. Ravi Prasad, Scientific Officer, SEIAA, Karnataka,
iii.) Shri. G. Thirumurthy, Additional Director, Regional
Directorate, CPCB and
iv.) Shri Shanmukhappa, Senior Environmental Officer, KSPCB.

52. The site inspection was made on 26.07.2019 by Committee

members but those who actually visited site comprised of some different

members as is evident from para 6 of the report :

i.) Shri G. V. Ravi Prasad, Scientific Officer, SEIAA, Karnataka,

ii.) Shri G. Thirumurthy, Additional Director, Regional
Directorate, CPCB,

64
 iii.) Shri Sadique Ahamed, Senior Environmental Officer, KSPCB,
iv.) Shri Anil Kumar M., Environmental Officer, KSPCB,
v.) Smt. Malathi, Executive Engineer, BBMP and
vi.) Shri David, Supervisor, Assistant Director Land Records.

53. In this inspection team, Shri G.V. Ravi Prasad and Shri. G.

Thirumurthy, were the members who were appointed in Committee by

KSPCB. Shri Sadique Ahamed was member in First Joint Committee and

remaining three were not members of the Committee constituted by

KSPCB but they visited the site as part of inspection team.

54. Another inspection was made on 13.12.2009 and the persons

constituted inspecting Committee members consisted of the following:

i.) Shri Ravi Kumar, J.K. Scientific Officer, SEIAA, Karnataka,

ii.) Shri G. Thirumurthy, Additional Director, Regional
Directorate, CPCB,
iii.) Shri Shanmukhappa, Senior Environmental Officer, KSPCB,
iv.) Dr. Murali Krishna, Scientist-D, MoEF&CC,
v.) Shri Jayasimha, Assistant Executive Engineer, BBMP and
vi.) Shri David, Supervisor, Assistant Director Land Records.

55. Third inspection was made on 05.02.2020 by Joint Committee

through the following members:

i.) Dr. Dola Chatterjee, Scientific Officer, MoEF&CC,

ii.) Shri G. Thirumurthy, Additional Director, Regional
Directorate, CPCB,
iii.) Shri Shanmukhappa, Senior Environmental Officer, KSPCB,
iv.) Shri Anil Kumar, Environmental Officer, KSPCB,
v.) Shri Jayasimha, Assistant Executive Engineer, BBMP and
vi.) Shri David, Supervisor, Assistant Director Land Records.

56. Ultimately, report has been signed by following members:

i.) Dr. Murali Krishna, Scientist-D, MoEF&CC,

ii.) Shri Ravi Kumar, J.K. Scientific Officer, SEIAA, Karnataka,
iii.) Shri G. Thirumurthy, Additional Director, Regional
Directorate, CPCB and
iv.) Shri Shanmukhappa, Senior Environmental Officer, KSPCB.

57. Second Joint Committee has referred to Building Plan sanctioned

by BBMP giving details of the site area, and number of flats , as under:

65
 ―The Bruhath Bangalore Mahanagara Palike (BBMP) has
sanctioned the building plan for the construction of Block 1 on
30.08.2018 and the plan is further modified inclusive of Block 2 on
28.05.2019 with validity up to 27.05.2021 (3 years) as per the
Zoning Regulations of Revised Master Plan-2015 and Building Bye
Laws-2003. The sanction accorded is only for Residential Use. The
total built up area and FAR area of the project is:

o Site Area : 51,698.16 m2

o Area deducted under kharab : 1,315.21 m2
o Net Site Area : 50,382.95 m2
o Area Reserved for Park & Open spaces : 05,093.87 m2
o Area Reserved for Civic Amenities :02,540.66 m2
o Net Site Area for Residential Development (95%) :47,842.29 m2

The said project will be having two Blocks, constructed in two

phases (Godrej Reflections Phase-1 and Godrej Lake Gardens
Phase-2), the details are:

Block/ Basement Ground Upper Height No. Ground

Phase Floor Floor Floor (m) of Coverage
Units Area (m2)
1 2 1 20 60.15 265 5,202.76
2 1 1 20 60.15 360 5,622.84
Total 625 10,825.60
‖

58. Describing boundaries of project, report says that on North side is

―Kaikondarahalli Lake‖.

59. Details of various NOCs/Permissions/Clearances obtained by PP

are given in para 3.0 of the reports as under:

― S. Approval Obtained Date Department

No. /
Authority
1. Land conversion Agricultural to Non- 31.03.2006 DC-
Agricultural Residential Purposes Bangalore
 Sy. No. 61/2 - 3 Acres 05 Guntas Urban
 Sy. No. 62 - 3 Acres 02 Guntas District
 Sy. No. 63/2 - 6 Acres 21 Guntas

2. NOC for height clearance 21.09.2016 AAI

3. NOC for height Clearance 20.12.2016 BSNL
4. Permission for Construction of RCC 02.08.2017 BBMP
Drain & RCC culvers
5. Change of Land use from Industrial (Hi- 24.10.2017 UDD

66
 Tech) to Residential
6. Confirmation letter of Change of Land 08.12.2017 BDA
Use
7. NOC for Construction –Block 1 for Fire & 22.12.2017 Director
Emergency Services General of
Police
8. Issue of Environment Clearance 10.01.2018 SEIAA-
Karnataka
9. NOC-Temporary Power connection 31.01.2018 BESCOM
10. Relinquishment of area for the Park and 19.02.2018 BDA
Open Space
11. Lay out plan approval-Block 1 07.03.2018 BDA
12. Registration Certificate of Project 29.03.2018 Real Estate
& Regulatory
25.05.2019 Authority
(RERA)

13. NOC for Construction-Block 2 for Fire & 20.04.2018 Director

Emergency Services General of
Police
14. Consent to Establishment 12.10.2018 KSPCB
15. NOC-for Water supply & UGD 30.10.2018 BWSSB
16. Modified Plan Sanction approval-Block 2 28.05.2019 BDA
17. Civic Amenities Site Building Plan 29.11.2019 BDA
Approval

60. With respect to drains, report says that there are two secondary

drains passing though Survey no. 63, one single drain originating in

Survey no. 61 and one Pillu Kaluve, adjacent to Survey no. 63.

61. With regard to construction found on the spot, report shows as

under:

―a. The project proponent has constructed model house at

Western north corner of the said land and the same is being
used as site office by the project proponent. The total area of
construction is about 2500 Sq. ft, presently there are about 12
employees working.

b. The Civil construction of Block-1 at southern east side of the

project site in progress. (Photograph skipped)

c. Similarly, the earth working of Block-2 at western side of the

project site started. (Photograph skipped)

67
 d. The project proponent is constructing the box type storm
water drain passing within the project site. The Joint
Committee Members requested the BBMP and ADLR officials to
furnish details of the Report on Drains and Buffers maintained
and necessary approval for the same. (Photograph skipped)‖

62. In respect of buffer area, Committee has referred to RMP-2015; EC

dated 10.01.2018 and stand of BDA and, thereafter, made its observation

in the form of chart, as under:

― Judgment of Judgment of Actual Buffer Zone

Hon‘ble NGT in OA Hon‘ble Supreme maintained by the project
222/2014, Court in Civil proponent
dated:14.05.2016 Appeal No.
5016/2016 dated:
05.03.2019

A. From Lake Boundary

 75 m from the  Minimum 30 m  As per report, the measured

periphery of water buffer zone to be distance from Lake edge to
body to be maintained from Block-1 Building line is
maintained as Lake Boundary ranges between 77.45m to
green belt and 77.9m, which is complying
buffer zone with Buffer zone.
 The distance from Lake
edge to Block-2 Building
line is 79.40m, which is
also complying with Buffer
zone.

B. From Primary Drain/nala

 50 m from the  Minimum 50 m  No Primary Drain, not

edge of the buffer from middle applicable
primary of drain.
Rajakaluves

C. From Secondary Drain/nala

 Minimum 35 m  Minimum 25 m  As per report the measured

buffer zone is to be buffer zone to be distance from secondary
maintained from maintained from drain to Block-1 building
edge of Secondary middle of line is ranges between
Rajakaluves/nala Secondary 51.20m to 54.8m, which is
Rajakaluves/nala complying with Buffer
zone.
 The distance from
secondary drain to Block-
2 building line is 59.40m
which is also complying
with buffer zone.

68
 D. From Tertiary Drain/nala

 Minimum 25 m  Minimum 15 m  There is a storm water

buffer zone is to be buffer zone to be drain passing at sy. No.
maintained from maintained from 61 of southern side of the
edge of Tertiary edge of Tertiary project site as per village
Rajakaluves/nala Rajakaluves/nala map. But, in the
development plan
approved by BDA and
building plan approved by
BBMP, the nala/storm
water drain is shown
outside the boundary of
the project site.

 As per report measured the

distance from tertiary
drain to Block-1 building
line is 26.40m, which is
complying with buffer zone.
‖

63. The Committee then has considered construction of box type SWD

by PP and recorded observations as under:

―BBMP has given approval to the project proponent to construct

U-type RCC drain and 2 Nos. of RCC box culverts without
deviating the original alignment and measurement of the storm
water drain. The RCC ‗U‘ Type drain measurement is 5.40m×3.0m
and two culverts of 12m R.C.C. Block type as per the approval.
The land along the drain is 10.40m in which 5.4m width is for U
type drain and remaining area is divided as 2.5m on either side of
the Secondary Drain and reserved. The copy of the order and its
translation, engineering drawings are given as Annexure 9. The
total length of drain from the Kasavanahalli Lake outlet to
Kaikondarahalli Lake inlet is 525m. Out of 525m, the length
of the drain passing in the said project is 130m i.e. from CH
395m to CH 525m. The details drawing showing length of drain,
width of construction of ‗U‘ Type drain and remaining area of nala
kharab reserved i.e. 2.5m on each side is shown as Annexure 10.

The project proponent is constructing the box type storm

water drain passing within the project site, as per the approval
of BBMP. (Photograph skipped)

The committee noticed that for the construction of U-type drain

and RCC box culverts, the existing drain was diverted
temporarily and the construction U-type drain is partially
completed. The excavated soils are stored adjacent. The
construction is being carried out as per the approval.‖

69
64. Constructions of drive way, transformer yard etc. found in ‗buffer

zones‘ held permissible by Second Joint Committee in the report by

referring to para 4.12.1 and 4.12.2 (i) and (ii) of RMP-2015 and says as

under:

S. No. Activity Area Permitted or RMP-2015

not
A. Lake Buffer
1. 8 m Drive way 679.80 m2 Permitted As per
2. Transformer Yard 140.00 m2 Permitted Clauses
3. Parks & Open Space 5093.87 m2 Permitted 4.12.1 &
4.12.2 (i) (ii)
B. Secondary Nala Buffer
1. 8 m Drive way 2366.00 m2 Permitted -do-
C. Tertiary Nala Buffer
1. 8 m Drive way 1761.5 m2 Permitted -do-
2. Extent of STP 236.05 m2 Permitted

65. Second Joint Committee has held that project does not fall under

category of Eco-sensitive zone since there is no notification by MoEF&CC

declaring area in dispute as Eco-sensitive zone. With regard to the area

of construction, Committee has referred to EIA 2006 and its Schedule,

para 8(a), as was in 2006. It has ignored subsequent amendments and

substitution made. Referring to old provision of 2006, Committee has

observed that EC has been issued mentioning built up area 128193.9

square meters, construction of 2 residential blocks having 2

basements+Ground Floor+20 Upper Blocks with 655 units. It has then

referred to BBMP‘s sanctioned Building Plan dated 28.05.2019, wherein

construction plan consisted of 3 basement floors, 2 Ground Floors, 20

Upper Floors in each block and total number of units 265 in Block-1 and

360 in Block-2; net built up area as per BBMP sanctioned plan was

61418.72 square meters in Block-1 and 64244.34 square meters in

Block-2 i.e. total 125663.06 square meters. On this basis, Second Joint

Committee says that built up area is less than 150000 square meters and

falls under category B. The relevant part of report reads as under:-

70
 ―The above table reveals that the net built up area is 1,25,663.06
m2 and number of units are reduced to 625 while comparing with
EC dated 10.01.2018. Accordingly, the total built up area of the
project is <150000 m2 and falls under Category B. The
Environmental Clearance approved by SEIAA is right as per the
threshold limit.‖

66. Further observations and conclusions of Second Joint Committee‘s

report, we shall discuss later while considering issues on merits.

67. Appeal was finally heard on 11.08.2020. Supreme Court found

that report of Second Joint Committee was in favour of PP. It observed

that Tribunal, since, did not have the benefit of report of Second Joint

Committee in OA No. 602/2019 which was filed for the first time before

Supreme Court, hence it was appropriate that the order of Tribunal be

set aside and matter be reheard by Tribunal. The relevant extract of the

judgment dated 11.08.2020 (reported in 2020 (9) SCC 454) reads as

under:

“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 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.”

(Emphasis added)

68. Thereafter, MA No. 49/2020 was filed in OA-2 with a prayer that

OA-2 be restored and heard afresh along with Appeal No. 54/2018 in

71
view of Supreme Court judgment in Wonder Projects Development

Private Limited vs. UOI (supra). Both the matters were directed to be

listed together and heard on 28.08.2020. After hearing the parties, order

was reserved and delivered on 08.09.2020. Tribunal found it appropriate

to rehear the matter and directed that OA 602/2019 and OA 281/2019

both be revived for fresh consideration. The relevant extract of order

dated 08.09.2020, reads as under:-

“On 3.2.2020, all the three matters, OA 281/2019, OA 602/2019

and Appeal No. 54/2018 were taken up for hearing together and
were disposed of in the light of the said report. It is only after the
Tribunal passed the order dated 3.2.2020 that second report in OA
602/2019 was submitted in the proceedings pending in Supreme
Court. The said report makes no reference to report dated
23.9.2019 in OA 281/2019 though representatives of CPCB
and State PCB are included in both the reports. While the report
in OA 602/2019 is only with regard to this project and is in favour of
the project proponent but the report in OA 281/2019 also covers this
project (apart from other constructions) and was, therefore, relied
upon while passing the order dated 3.2.2020. Since order in Appeal
No. 54/2018 has been set aside and is common basis for orders in
OA 281/2019, OA 602/2019 and Appeal No. 54/2018 in the said
report, all the three matters will require consideration afresh as far
as this project is concerned. OA 602/2019 and OA 281/2019 will
have to be revived for fresh consideration in respect of this
project. We order accordingly. M.A. 49/2020 is disposed of.”

69. Consequently, on the same day, a separate order was recorded in

OA-1, i.e., OA No. 281/2019, which reads as under:

“In view of order passed today separately in Appeal No. 54/2018, H.

P. Ranjana v. Union of India & Ors., OA 281/2019 is revived for
further orders and be listed for hearing on 15.01.2021.”

70. Further, Tribunal heard Appeal No. 54/2018 and OA No. 602/2019

also on merits in the context of the reports of First Joint Committee and

Second Joint Committee.

71. The Counsel appearing for appellant/applicant-H.P. Ranjanna in

Appeal No. 54/2018 and OA No. 602/2019, broadly demonstrated faults

72
in second report and his submissions were summarized by Tribunal in

order dated 08.09.2020, as under:

“
A. The project proponent has concealed material information in
statutory Form 1A submitted to State Expert Appraisal Committee
(SEAC) in respect of particulars of the ecologically sensitive
areas, including the water bodies and forests. Having regard to
extent of the constructions required to be taken into account in terms
of judgment in Goel Ganga (supra), the project has more than 1.5
lac sq. meters of construction on account of which it will fall
under category „B-1‟ in view of Para 8 (b) of the EIA Notification
dated 14.09.2006, and not B2 under para 8 (a), to be appraised
differently.

B. The lake being a wetland as mentioned in the Atlas published by

the MoEF&CC, the project may be hit by the Wetland Rules.
Under Rule 4 of the Wetlands Rules, 2017, construction within 50
meters from the mean high flood level observed in past 10 years
from the date of commencement of the Rules is not allowed. No
demarcation of the mean high flood level has been done or
referred to determine whether the present constructions are
within 50 meters of such level. The Committee while observing
that Wetlands Rules, 2017 should be followed, has observed that the
area is not falling under the wetland definition without noting the
„National Wetland Atlas‟ showing that the area may be hit by the
Wetland Rules.

C. The Committee has wrongly assumed the drain to be secondary

drain even though in the application of the project proponent
itself it is mentioned as primary drain.

D. The Committee has observed that the project proponent is

constructing box type storm water drain passing through the project
site. The storm water drain, as per para 8.0 of the report,
originates from the lake and flows towards the lake between
the two blocks. To approach Block-I, it has to cross secondary
drain. The area of secondary drain is kharab land, measuring
13 guntha. BBMP had granted approval to construct the new type
RCC drain and two RCC culverts without deviating from the original
alignment and measurement of the drain. Thus, even if BBMP has
granted permission, use of kharab land and construction of RCC
box type drain through secondary drain is contrary to
statutory regulations under the 1961 Act.

E. There is conflict in the reports dated 23.09.2019 in OA 281/2019

and second report in OA 602/2019. Both the reports cover this
project. In both the reports CPCB and PCB are parties. In first report

73
 BBMP and BDA are included. They are not in second report.
MoEF&CC and SEIAA are also not in second report. Stand of BBMP
before this Tribunal is against the second report.

F. According to written submissions filed by BBMP on 27.08.2020 the

project proponent has violated statutory requirements in
obtaining building plan without first obtaining „Consent to
Establish‟ under Section 25 of the Water (Prevention and Control of
Pollution) Act, 1974. There is encroachment of water stream and
primary rajkaluve connecting two lakes, viz upstream lake
(Kasavanahallilake) and downstream lake (Kaikondarahalli lake).
The conceptual plan shows that there is a primary drain
crossing the project land and there also are kharab lands (meant
for common use). The kharab land cannot be used by the project
proponent in view of condition no. 42 of the EC and a board is
required to be displayed to that effect. The same is sought to be
encroached for construction of internal drive way. Internal drive
way is within the buffer zone. Various activities of the project
proponent are in the buffer zone.”

72. The stand of appellant/applicant- H.P. Rajanna was supported by

BBMP. The stand of PP, however, was that there was a mistake in relying

upon report dated 23.09.2019 submitted in OA-1, since, issue raised

therein, was in respect of land comprising of different Survey numbers;

Report dated 29.06.2020 submitted by Second Joint Committee in OA-2

before Supreme Court dealt with the issue relating to the land of PP in

Appeal No. 54/2018 and OA-2 and it finds project in dispute fully

compliant; Second Joint Committee consisted of officials whose credibility

cannot be doubted; project has been rightly evaluated as B2 category

based on construction size mentioned in application, Form 1, supported

by conceptual plan giving details; PP will not construct more than that;

project is neither in buffer zone of lake or the drains nor hit by Wetland

Rules, 2017; Development Plan and Building Plan were duly sanctioned

by BBMP; U-type RCC structure for storm water drain has been duly

approved by BBMP; even if Committee wrongly took Primary drain as

Secondary, the project is beyond buffer zone of Primary drain also;

74
sequence of obtaining consent to establish under Water Act, 1974 does

not affect the substance being a procedural matter, not going to the root

of legality of the project hence even if there is violation of any condition of

EC, the same can be rectified and EC as such is not vitiated.

73. Tribunal examined above contentions and noticed that there was

contradictions in reports of two Joint Committees, but, what that

contraventions are, what effect it had on the project and whether second

report can be accepted without going into the objections with regard to

size of constructions, statutory regulations dealing with the buffer zones

of lake/drains, Wetland Rules, 2017 and Form 1 not giving all relevant

details and the same being accepted by SEAC, Karnataka without

verification and whether procedure laid down in EIA dated 14.09.2006,

was followed, needs detailed scrutiny. Tribunal also noticed that the

scope of OA No. 281/2019 and OA No. 602/2019 is over-lapping;

initially, Appeal No. 54/2018 was before Bench II and later filed OA No.

281/2019 in Bench I; subsequently, Appeal No. 54/2018 was transferred

to Bench II, to be heard with O.A. No. 281/2019, vide order dated

08.07.2019; OA No. 602/2019 was filed subsequently on 17.07.2019 and

taken up in Bench I on 19.07.2019; without reference to order dated

11.03.2019 in OA No. 281/2019, Tribunal sought a factual report with

reference to issue of project being within buffer zone of lake/drains,

following usual practice in such matters so as to ascertain the relevant

facts, independently from concerned statutory authorities, in such

matters; First Joint Committee in OA No. 281/2019 had already

submitted an interim report on 11.04.2019 and final report was

submitted on 23.09.2019, that is within a week when second joint

Committee was constituted in OA No. 602/2019; Report dated

23.09.2019 submitted by First Joint Committee found project in dispute

75
in OA-1 as well as some other constructions to be in buffer zone of the

lake; counter affidavit/response submitted by BBMP was in consonance

with the said report; hence on 03.02.2020, when all the three matters

came up before Tribunal; they were heard together and disposed of in the

light of report dated 23.09.2019; thereafter, matter went to Supreme

Court and as per direction of Supreme Court, Second Joint Committee

submitted report directly thereat; this report of Second Joint Committee

made no reference to report dated 23.09.2019 submitted in OA No.

281/2019 before Tribunal though two representatives, i.e., CPCB and

KSPCB were common in both the Committees; be that as it may, since

judgment/order dated 03.02.2020 in reference to Appeal No. 54/2018

was set aside by Supreme Court vide judgment dated 11.08.2020, all the

matters need be heard again and consequently, OA-1 & OA-2, both were

revived. Thereafter, Tribunal also considered both reports and found

findings in Second Joint Committee that project in dispute is outside

buffer zone, in conflict with the findings in report dated 23.09.2019

submitted by First Joint Committee in OA-1. Tribunal also considered the

question of acceptability of Second Joint Committee‘s report and gave its

reasons on this aspect in para 16 to 19. In brief, Tribunal held that

Second Report has failed to consider First Report, and not explained facts

stated in First Report. In respect of size of project, different figures were

given by PP to different authorities but this aspect was not considered by

Second Joint Committee though it was relevant for consideration of grant

of EC in as much as if area would exceed 150000 square meters, project

would fall in Category A and a different procedure would have to be

followed. Tribunal relied on Supreme Court Judgment in Hanuman

Laxman Aroskar v. Union of India, (2019) 15 SCC 401, wherein it was

held that EC can be granted strictly in accordance with the procedure

76
laid down in EIA 2006; Parameters and procedure for evaluation of

different categories of projects are different; Category of project depends

on size of construction; if it is more than 1.5 lac square meters, it would

fall in Category A and EC granted treating the project as B2 will be

invalid; Supreme Court also explained the process of EIA stating that it

involves 4 stages namely, screening, scoping, public consultation and

appraisal; EC process is based on information provided by applicant in

Form 1 and this information is crucial; depth of information sought in

Form 1 is to enable the authorities to evaluate all possible impacts of the

proposed project and provide the applicant an opportunity to address

those concerns in the subsequent study; missing or misleading

information in Form 1 significantly impedes the functioning of the

authorities and the process stipulated under EIA 2006; and any

application made or EC granted on the basis of a defective Form 1 is

liable to be rejected immediately. Tribunal further said that Second Joint

Committee has said that there is no wetland relevant for project without

having any demarcation in terms of Wetland Rules, 2017 though it was

own disclosure by applicant that the site in dispute was abutting lake

and Rajakaluves were also passing through the disputed site or in its

vicinity.

74. SEIAA, Karnataka had taken a stand before Tribunal that it had

gone by information in Form 1 without any physical visit to the site or

independent evaluation. Tribunal said that it was necessary for it to

verify the facts; two reports covered same project and two members were

common in both the Committees, still reports were contradictory and

those common members have also not made any endeavor to explain or

give any reason, why contradictory reports have come; with regard to

wetland, National Wetland Atlas was not considered; once an area is

77
wetland, compliance of statutory rules was necessary in the light of

Supreme Court Judgment in M.K. Balakrishnan and Ors. v. Union of

India and Ors., (2017) 7 SCC 805; the extent of constructions needed to

be evaluated in view of law laid down in Goel Ganga Developers India

Pvt. Ltd. vs. Union of India and Ors., (2018) 18 SCC 257; even if

project was beyond buffer zone of drain, it has to be ensured that there

are no other development activities in the said zone, including RCC storm

water drain passing through the existing drain/kharab land, it had to be

examined whether box type constructions/civil work in any manner

affects the catchment area of drains; Second Joint Committee has taken

BBMP‘s approval as conclusive without independent evaluation; though

BBMP itself has taken a stand in the affidavit that its approvals are

against law and SEIAA, Karnataka has not made any independent

evaluation as required and Second Joint Committee has not examined

this aspect also.

75. Consequently, Tribunal took a view that an independent report by

another Joint Committee should be called for. Accordingly, it proceeded

to form a new Committee (hereinafter referred to as ‗Third Joint

Committee‘) comprising of representatives of four authorities, represented

in the Second Joint Committee, and five other authorities/institutions,

i.e., total nine members. The relevant extract contained in paras 20, 21

and 22 of the judgment, read as under:

“20. In view of the above, we find it necessary to have an

independent report by another joint Committee which we now
constitute. The joint Committee will comprise apart from the
representatives of the four authorities represented in the Committee
which has given second report, five other authorities/institutions
need to be involved. BBMP and BDA were party to report dated
23.9.2019, they need to be involved to reconcile the two reports.
Nominee of Irrigation & Flood Control Department, Government of
Karnataka and nominee of Revenue Department, Government of

78
 Karnataka are required for demarcation of mean high flood level as
per the Wetland Rules. Karnataka State Wetland Authority is to be
added for relevant expertise. Thus, there will be nine (09) members
in all. The nominee of the MoEF&CC will be the Coordinator/
Chairman of the Committee who, in the circumstances, should be of
the level of Joint Secretary or equivalent. The nominee of CPCB will
be the Regional Director/Scientist E. The nominees of SEIAA,
Karnataka, State Wetland Authority and State PCB will be the
respective Member Secretaries. The nominee of Irrigation & Flood
Control Department will be the Chief Engineer and nominee of
Revenue Department, Govt. of Karnataka will be the Collector.
Nominees of BBMP and BDA will be the respective CEOs. The
Coordinator may call first meeting at the earliest.

21. The Committee will be at liberty to involve any other

expert/institution. It will be open to hold meetings by video
conferencing, if so decided but it may visit the site, look into
the earlier reports and the above points, particularly size of
the project, compliance of statutory rules relating to buffer
zone/wetland and furnish its report within two months of its
first meeting by e-mail at judicial-ngt@gov.in preferably in the form
of searchable PDF/ OCR Support PDF and not in the form of Image
PDF.

22. It will be open to the appellant and the project proponent to give
their representations to the coordinator of the Committee
mentioning brief points not beyond 10 pages, apart from
documents relied upon within one week from today through the
regional office of the MoEF&CC. The matter will be considered
further after the receipt of the report of the joint Committee.

List for further consideration on 15.01.2021.

A copy of this order be sent to MoEF&CC, CPCB, SEIAA,

Karnataka, State PCB, BBMP, BDA, Secretaries, Irrigation and
Flood Control Department, and Revenue Department, Government
of Karnataka and Karnataka State Wetland Authority by e-mail for
compliance.”
(Emphasis added)

76. Third Joint Committee has given its report through Regional

Officer, Integrated Regional Office (IRO), Bengaluru, vide letter dated

15.03.2021/16.03.2021, submitted to Tribunal on 18.03.2021.

79
77. Both the parties, i.e. Appellant/Applicant as well as PP, have

submitted their objections/responses to the reports, advanced

arguments, also filed written submissions.

78. We have heard Shri Raj Panjwani, Senior Advocate with Mr. Rahul

Choudhary, Advocate (in Appeal No. 54/2018 & OA No. 602/2019)

appearing for Appellant/Applicant, Mr. Ram Prasad, Advocate (In OA No.

281/2019) for Applicant-Mr. Pinaki Misra, Senior Advocate with Mr. V.

D‘Costa and Ms. Astha Ojha, Advocate for respondent-11 and 12, Mr.

Darpan KM, Advocate for State of Karnataka and BBMP, Mr. Mukesh

Kumar, Advocate for KSPCB and Mr. H.K. Vasanth, Advocate for SEIAA,

Karnataka.

79. Learned Senior Counsel Shri Raj Panjwani, appearing for

applicant/appellant, at the outset submitted that Third Joint Committee,

as constituted by Tribunal has not submitted report through those

members but, in fact, some of the members who actually made

inspection, participated in the proceedings and signed reports are

different persons comprising of very junior level officers and, therefore,

report of Third Joint Committee is vitiated on this ground alone. He

urged that it is not a report of Committee as constituted by Tribunal,

hence should be rejected outright.

80. We find that pursuant to Tribunal‘s order dated 08.09.2020,

Regional Office, Bengaluru of MoEF&CC issued order dated 16.12.2020

constituting Joint Committee of the following members:

― S. Name Designation Nominee/Represen

No. tative Department
1 Shri Regional Officer Chairman of the
Kaushlesh Joint Committee
Pratap and Representative
Singh, IFS of MoEF&CC
Integrated Regional

80
 Office (IRO),
Bangalore

2 Dr. H.R. Commissioner Representative of

Mahadev, BDA
IAS
3 Shri. Principal Secretary Representative of
Vijaykumar to Government SEIAA, Karnataka
Gogi, IFS (Ecology and and Karnataka
Environment), Wetland Authority
Forest, Ecology and
Environment
Department

4 Shri. H.L. Engineer-in-Chief Representative of

Prasanna Minor Irrigation and
Ground Water
Development
Department

5 Shri. R Additional Director Representative of

Prasad of town Planning BBMP
6 Shri. M.K. Chief Environmental Representative of
Prabhudev Officer KSPCB
7 Shri. G. Additional Representative of
Thirumurthy Director/Scientist-E CPCB
8 Shri. David Survey Supervisor Representative of
Doraswamy Department of
Revenue (Land
Records)

9 Dr. Murali Joint Director/ Co-Opted Member

Krishna Scientist-D from IRO,
MoEF&CC,
Bangalore

81. However, report shows that Dr. H.R. Mahadev, Commissioner

(Representative of BDA), Shri H.L. Prasana, Engineer-in-Chief

(Representative of Minor, Irrigation and Ground Water Development

Department), Shri H.N. Raghu, Additional Director (Representative of

Town Planning, BBMP), Smt. Saumya D, Scientist-D, Regional

Directorate, CPCB are not signatories and instead their representatives

(Officers, junior in rank) have participated as members of Committee and

signed report. This is demonstrated as under:

81
 Name of the member as per NGT Signatories to the Report who
order dated 08.09.2020 and were not Members of committee
MoEF&CC order dated as per NGT order and MoEF&CC
16.12.2020 order dated 16.12.2020

Name Designation Name Designation

Dr. H.R. Commissioner Shri B.A. Superintending
Mahadev (Representative of Shivananda Engineer, BDA
BDA)
Shri H.L. Engineer-in-Chief Shri Asst. Engineer,
Prasana, (Representative of Jagadish Minor Irrigation
Minor, Irrigation and B.K.
Ground Water
Development
Department)
Shri H.N. Additional Director Shri B. Joint Director,
Raghu, (Representative of Manjesh Town Planning,
Town Planning, BBMP
BBMP)
Smt. Scientist-D, Regional Shri G. Additional
Saumya D, Directorate, CPCB Thirumurthy Director/Scientist-
E

82. The above discrepancy, evident from record cannot be appreciated.

The officers who were appointed as Members of Committee had no

authority to depute or delegate or nominate any other official and that too

considerably Junior Officers. However, looking to the gravity of issue and

the fact that these matter are pending for the last 2 to 3 years, have

travelled Supreme Court thrice at interlocutory stage or final stage, we

find it appropriate to examine on merits also and not to substantiate our

judgment only on the above discrepancy. Therefore, we have heard on all

the issues raised on merits and proceed to decide the same.

83. The entire controversy before us now revolves around the

observations and recommendations made by Third Joint committee in its

Report dated 15.03.2021/16.03.2021 relating to lake, drains, ‗buffer

zone‘, observance of Wetland Rules, 2017, built up area and compliance

of EIA 2006. Therefore, it would be appropriate to notice contents of this

report before discussing matter in the light of rival contentions.

82
84. Third report dated 15.03.2021/16.03.2021 shows that Committee

held first meeting on 13.12.2020 and, thereafter, visited the site. It also

informed various departments namely BBMP, Revenue Department,

Wetland Authority, Minor Irrigation and Flood Control Department, BDA,

SEIAA Karnataka and KSPCB, imposing some questions, which are as

under:

“ S. Department Information/clarification sought

No.
1 BBMP/Revenue  What is the Buffer area from the lake to
Department Block-I and Block-II?

 What is the Buffer area from centre of the

secondary nala to Block-I and Block-II?

 Whether approval was accorded for

construction of a box drain for flow of
water in the secondary nala or for usage
of Kharab land in the project site and
whether the same is in consonance with
the existing Rules/ Acts in force.
2 Wetland  Whether the Kaikondarahalli lake has
Authority/ been notified as Wetland or Not?
BBMP /Minor
Irrigation and  What is the maximum buffer area to be
Flood Control left from the lake if the lake is notified
as a Wetland area and what activities
are permitted within buffer area as per
Wetland Rules and also considering
Justice Balakrishnan verdict?

 What is the maximum water level of

Kaikondarahalli lake/ height of the bund and
what is the maximum water level observed
during last 10 years along with direction of
flow of water from lake as per Rule 4 (vi) of
Wetland Rules 2017?

 To confirm whether any construction

temporary/ permanent nature undertaken in
buffer area?

 Whether adequate buffer distance is

maintained from lake periphery to Block-I
and Block-II as per Rule 4 of Wetland Rules
3 BDA/BBMP  Whether building permission accorded for
construction of Block-I and Block-II or not? If
permission is accorded, the details of the
same.

 To confirm the size / total area of the

project (Both FSI and Non-FSI) area of two
towers cumulatively.
4 SEIAA  Whether EC obtained and details of EC along
with its validity.

 Whether EIA studies were required or not

during the appraisal of the project (B1/B2
category) based on EIA Notification 2006
5 KSPCB  Whether CFE obtained or not and if yes, ”
details of CFE along with its validity.

83
85. It has examined the matter on six aspects, collectively i.e. (a)

‗Buffer Zone‘ and distance from the lake periphery to constructed towers,

(b) size of the project, (c) ―Kaikondarahalli Lake‖ as wetland and mean

high flood level, (d) Kharab land in the project site, (e) reconciliation of

both reports of the Joint Committees constituted in OA-1 and OA-2 and

(f) relevant statutory approvals i.e. EC, Consent for Establishment and

other statutory approvals obtained by PP.

86. Third Joint Committee has recorded its conclusion and final

remarks as under:

“CONCLUSION AND FINAL REMARKS

As per directions of Hon‟ble NGT, Principal Bench, New Delhi vide its
order dated 08.09.2020 the Appeal No. 54 of 2018 sought an
independent report by another Joint Committee with the following
mandate:
 Reconciliation of the two Joint Committee Reports (OA No. 281 of
2019 and OA No. 602/2019)
 To verify the size of the project (FSI and Non-FSI)
 To verify the compliance of Statutory Rules relating to „Buffer
Zone‟ Wetland.

As per the directions of the Hon‟ble NGT, this Joint Committee after
reconciliation of both the earlier Joint Committee Reports submitted
in OA No. 281 of 2019 and OA No. 602 of 2019 along with written
submissions and official correspondence received from relevant
Statutory Agencies have also been referred and accordingly conclude
the following:

1. M/s. Wonder Projects Development Pvt. Ltd have not violated

“Kaikondarahalli Lake” „Buffer Zone‟ requirements and
have left an adequate buffer area of more than 75.00 Mtrs
from the lake periphery and more than 50.00 Mtrs from
the Secondary Nala in the project site to the partially
constructed tower in Block-I which is the maximum threshold
under any of the applicable Statutory requirements including
various Judgements of Hon‟ble Supreme Court and Hon‟ble NGT
and also as per Wetland requirements.

2. Project Proponent has not undertaken any construction either

of permanent or temporary nature in the lake „Buffer Zone‟
and this buffer area has been earmarked for greenbelt
development.

84
3. Project Proponent has not violated any built-up area norms
and appraisal of the project under B2 Category was done
correctly as the total built area of the project (including FSI and
Non FSI area) was less than 1,50,000 Sq. Mtrs which do not
require mandatory Environment Impact Assessment (EIA) Studies
as per Environment Impact Assessment Notification, 2006.

4. Project Proponent has maintained adequate Nala Buffer of

more than 50.00 Mtrs to the partially constructed tower in
Block-I which is the maximum threshold even if it is
considered as Primary or Secondary Nala.

5. As per the provisional inventory submitted by State

Government of Karnataka to Central Government,
“Kaikondarahalli Lake” has been included in the
provisional inventory list of Wetlands. However, as on date
this “Kaikondarahalli Lake” has not been notified as a
Wetland by the Government. The Mean High Flood Level of this
“Kaikondarahalli Lake” is 880.207 Mtrs. which is less than the
top bund level (TBL) i.e., 881.407 Mtrs. Considering the last 10
years data, it has been noted that this lake has never overflowed
and further the direction of flow of water is towards
Northern Side and this project located in South-Eastern
side of the lake, the possibility of water overflowing into
this project site is very remote. Further, the requirement of
maintaining a buffer distance of 50.00 Mtrs. from the Mean
High Flood Level is also complied as project proponent
have left a buffer distance of 75.00 Mtrs. from the lake
periphery.

6. As per official records it is noted that 13 Guntas of the project

site with a secondary nala flowing from “Kasavanahalli
Lake” to “Kaikondarahalli Lake” is a Kharab Land in which
no development /constructions are to be undertaken. However,
considering the importance free flow of water between the two
lakes without disturbance and as a special case permission
for construction of RCC Box Drain and U type RCC Drain in
Kharab land was accorded by Bruhat Bangalore
Mahanagara Palike (BBMP) under exercise of due powers
conferred to the Commissioner, BBMP under Section 288A and
288(1)(c) of the Karnataka Municipal Corporation Act, 1976
which the Joint Committee finds to be in order.

7. Pursuant to reconciliation of both the Joint Committee Reports in

OA No. 281 of 2019 and OA No. 602 of 2019, it is noted that out
of total project area, nearly about 58% (29264 Sq. Mtrs) of the
area comes under either Lake Buffer area or Nala Buffer
area and the project proponent cannot undertake any

85
 construction in that area and the area available for
developmental activity is only about 42% (21118.93 Sq. Mtrs.)
and suitable consideration have already been made in the
project design with regard to buffer area requirements.
Accordingly, this Joint Committee opines that construction
activities in the above survey numbers can be permitted while
strictly adhering to both Lake and Nala buffer area requirements
and in case of any violation in future, appropriate enforcement
action can be taken by relevant Statutory Agencies.

8. Project Proponent have obtained all requisite permissions from

relevant Statutory Agencies and Construction of the Project
have been stopped from 03.02.2020 pursuant to Orders of the
Hon‟ble NGT in Appeal No. 54 of 2018 and OA No. 602 of 2019
and on the day of Joint Committee visit also the same was
noted that construction has been stopped.”

Objection by Appellant/Appellant to Third Report:

87. Appellant/applicant-H.P. Ranjana has objected to this Report vide

Objections dated 11.06.2021 emphasizing on the issue of illegal change

of members of Third Joint Committee contrary of order of this Tribunal

and also order of MoEF&CC constituting Committee. It has also pointed

out many other discrepancies, in brief, are as under:

(a) Consent to Establish granted by KSPCB was withdrawn vide order

dated 06.07.2020 and the said order is still operative;

(b) Entire project has been stayed by Karnataka Real Estate Appellate

Tribunal vide order dated 11.02.2021 in Appeal No. (K-REAT) 355 of

2020;

(c) Third Joint Committee has stated that EP has not violated ‗Buffer

Zone‘ norms and maintained a buffer of more than 75 meters from the

lake periphery to Block-I and Block-II. However, it has failed to

examine further whether there are development activities in the said

zone or not. In the order dated 08.09.2020, Tribunal said “Even if the

project is beyond the „Buffer Zone‟ of the drain, it has to be ensured that

there is no other development activities in the said zone”. Third Joint

86
 Committee has given findings about no construction coming within

prohibited ‗Buffer Zones of lake though constructions allowed in DP

are:

(i) Driveway‘s within 50 meters on either side of ‗Buffer Zones of

inter-connecting Primary Rajakuluves/nalla between the two

lakes (upstream ―Kasavanahalli Lake‖ and downstream

―Kaikondarahalli Lake‖) wherein the said nalla bisects block-l

and block-2 and flows into the downstream ―Kaikondarahalli

Lake‖;

(ii) Creation of infrastructure for Common areas;

(iii) Construction of boundary wall alongside the lake;

(iv) Constructions/creation of storm water drains on the periphery

of project, within lake‘s ‗Buffer Zone‘, and next to the lake

itself. (This can be discerned from conceptual plan submitted

before SEIAA, Karnataka, annexure-2);

(d) Third Joint Committee has not looked into DP wherein several

activities were proposed within 50 meters of primary nalla/feeder

canal as well as 75 meters buffer from the lake, plus creation of storm

water drain right next to lake. It has failed to consider that

construction of feeder canal itself is completely prohibited. Feeder

canal connecting two lakes, flowing through the project site is a ‗water

stream‘ and cementing it is a clear case of impeding natural flow of

water which tantamount to removal of Rajakaluves. It shows that

Third Joint Committee has not examined the matter, independently,

but simply on the basis of information given by different agencies and

by twisting facts, has submitted report;

87
(e) It has also not examined correct built up area of the project. PP has

disclosed built up area differently before different authorities. As per

BBMP reply dated 05.09.2018, total construction area including FAR

and non-FAR was 235076.81 square meters. Committee has also

failed to examine conceptual plan submitted by PP before SEAC,

wherein FAR and non-FAR area was worked out as under:

“Common Values of Project

Total FAR achieved 93423.70 Sq Mts
Parks and open spaces 4833.73
Civil amenities 2524.1.8
Total 100781.61 Sq Mts

PHASE-2
Parking 17605.05
FAR deductions 18,442.05
Lift and Ramps 837.0
Shafts 706.0
Total 37,590.1 Sq Mts

PHASE-1
Parking 13,835.20 Sq Mts
FAR deductions 14,688.20
Shafts 696.0
Lifts and Ramps 853.0
Total 30,073.2 Sq Mts

Grand Total:
Common Values of Project +Phase-l + Phase-2
- 100781.61 Sq mts + 37590.1 sq mts + 30073.2 Sq Mts

Total 1,68,444.91 Sq Mts”

(f) Construction of 280 KLD + 210 KLD STPs, deep recharge wells along

lake ‗Buffer Zone‘ boundary and all around boundary of project site on

all sides was also liable to be included in the area of construction and

it would have taken built up area of project, more than 150000 square

meters, bringing it within different category and requiring different

procedures for consideration of grant of EC which has not been

followed in this case;

88
(g) Committee has considered distance of periphery lake viz-a-viz

residential tower and has excluded/omitted to consider other ancillary

activities within ‗Buffer Zone‘ of drains and lakes i.e. drive way, park

and open space, sought to be developed by PP as civic amenities for

the occupants;

(h) Committee has referred to the ultimate permission granted by

Commissioner, BBMP purported to exercise powers under Section 288

(1) (c) of KMC Act, 1976 for allowing Box drain RCC construction of

Primary Rajakaluves processing through the project land, ignoring

that reliance on the said provision was completely misplaced;

(i) Construction of RCC drains and RCC blocks on Kharab land has been

justified on the basis of BBMP letter dated 02.08.2017 without

examining that no construction could have been made on Kharab

land. It was wholly impermissible. Committee has justified it on the

basis of BBMP‘s letter dated 09.03.2021 informing that Commissioner,

BBMP, in exercise of powers under Section 288A and 288(1)(C) of KMC

Act, 1976, granted permission, without examining whether any such

power claimed, actually possessed by such Authority or not;

(j) It has failed to consider following constructions within ‗Buffer Zone‘ of

water body sought to be undertaken by PP:

i) In the ‗Buffer Zone‘ of ―Kaikondarahalli Lake‖: creation of a ramp

and driveway.

ii) In ‗Buffer Zone‘ of Primary Rajakaluve; construction of 12m

drive way;

iii) In the ‗Buffer Zone‘ of Secondary Rajakaluve passing through

Survey No. 57; construction of 12 meters wide drive way,

installation of gas bank and infrastructure for LPG pipe line;

89
 iv) In the ‗Buffer Zone‘ of Secondary Rajakaluve passing through

Survey no. 61/1; construction of 8 meter wide Fire Driveway,

installation of an Organic Waste Converter and gas

bank/infrastructure for LPG pipe gas line;

v) Compacting and concretization throughout Buffer Zones.

(k) Annexure-9 to Report of Third Joint Committee, states that Mean High

Flood Level must be calculated and demarcated. Letter dated

25.02.2021, however, said that it was not measured, therefore,

Wetland Rules, 2017 have been violated;

Additional Objections:

88. Additional objections dated 18.06.2021 have also been filed by

appellant/applicant, thereby it has simply annexed copies of Wetland

Rules, 2010, guidelines for implementing Wetland Rules, 2017,

Tribunal‘s judgment dated 06.12.2018 in OA No. 125/2017, table

mentioned and Conceptual Plan submitted by PP to SEIAA, Karnataka.

From the said table, it is evident that PP has proposed 265 units in

Block-1 and 390 units in Block-2, i.e., total 665 units. Summary of table

shows that from gross built up area, PP has deducted area for

shafts/cut-outs, lifts and ramps, parking and OTS terraces as Net FAR

deductions and after deducting the same has given built up area for two

blocks, as under:

Block-1: 43816.70 square meters

Block-2: 50357.00 square meters
Total: 94173.70 square meters

89. The required parking as per Conceptual Plan is for 460. It also

shows 1335.92 square meters kharab Land on the land on project site.

90
Arguments of the respondents‘ counsel:

90. The learned Counsel for BBMP has stated that he stick by the

affidavit and contents thereof filed on behalf of BBMP. Learned Counsel

for other authorities have only attempted to defend various officials.

Though, learned Counsel for SEIAA, Karnataka has not disputed that

members who actually participated in the proceedings of Third

Committee are not those, as constituted by Tribunal and appointed by

MoEF&CC, but there is no malafide on the part of authorities and on

account of work pressure, or may be for bonafide mistake, some senior

officers who were members of Committee authorized other officers to

participate in Third Committee proceedings and submit report. He said

that it is mere an irregularity and would not vitiate report itself.

91. On behalf of PP, matter has been seriously contested. Learned

Senior Counsel, Mr. Pinaki Misra, stated that holding company of PP is

very prestigious and never tried to go for real estate development in any

fishy or dubious manner. In this case, land constituting the proposed

project was purchased/acquired in a lawful manner from its erstwhile

owners, the land use was changed by Competent Authority in accordance

with law and there is no illegality; PP prepared plan and applied to

various authorities for NOC/Consent/Permissions and same have been

granted by different authorities from time to time, after due application of

mind, objective consideration and without any irregularity/illegality

therein. He urged that PP has no intention of committing breach of any

law including environmental laws; it has given a clear understanding to

all the authorities that it will abide by the built up area of 125663.06

square meters for which Building Plan has been approved and SEIAA,

Karnataka has granted EC and Consent by KSPCB. He further argued

that some changes and different proposals submitted to different

91
authorities were only on account of modification of designs by Project

Engineers and Designers but that difference should not be construed as a

concealment or disclosure of wrong information or varying stand taken by

PP before different authorities so as to constitute any illegality on its part.

Shri Misra, while admitting that land of disputed project on Northern side

abuts ‗Kaikondarahalli Lake‘ and some part passing through the land is

Kharab whereon there is a Rajakaluve/nalla which some authorities have

treated as ‗Primary Rajakaluves‘ and some including Third Joint

Committee as ‗Secondary Rajakaluves/nalla‘. Be that as it may, Shri

Misra stated that from the point of construction of two residential blocks,

PP has maintained requisite ‗Buffer Zone‘, and neither there is attempt

nor any intention nor as a matter of fact any action on the part of PP to

alter change/obstruct/affect otherwise, either the aforesaid

Rajakaluves/nalla or the lake or its surroundings including ‗Buffer Zone‘.

On instruction, Shri Misra, learned Senior Counsel gave an undertaking,

with reference to reply dated 30.06.2021 filed in reply to the submissions

of applicants, pursuant to permission granted by Tribunal when

judgment was reserved, that PP though started constructing RRC drain

but has stopped further construction on 03.02.2020 and the said

construction is incomplete; PP would remove aforesaid incomplete

concrete U shaped Box drain and substitute it, by installing either a

Gabion Wall, Bio Swale or such other suitable measures which will help

in free flow of water and in interest of ecology as permitted by Tribunal.

He further stated that PP is ready to remove entire partly constructed U

shaped Box drain and restore nalla/drain to its original condition in deep

consultation with best Ecologist. No water from project would be

discharged in the lake at any point of time; the project is a Zero

Discharge Zone with no sewage flowing into the lake; PP has proposed to

92
use STP sludge as manure, during operation phase; it has undertaken to

meet water requirement of nearly 310 KLD (Block-1) and 280 KLD (Block-

2) obtained from treated water from STP; it would treat domestic sewage

in STP and maintain STP to ensure aerobic conditions; and PP has

neither concealed any information nor given any wrong information in

Form-1/1A.

92. In the light of rival submissions and after perusal of reports,

pleadings and other documents placed on record, we find that broadly

issues raised in these two matters are with regard to wetland, its

surrounding area, i.e., zone of influence, which needs to be protected,

development of residential project in the vicinity of the said wetland,

particularly, when Storm Water Drain is also passing through the land of

disputed project flowing natural water from one lake to another, the

manner in which various Statutory Authorities have examined,

information given by PP for getting clearance mainly EC and also whether

there is any violation of Environmental laws by PP.

93. Firstly, the concept of wetland, importance of its protection and

statutory provisions if any operating, need to be examined. The next

aspect would be relevant Statute relating to grant of EC, and the manner

it was granted to PP.

Wetlands:

94. The wetlands have been considered to be one of the most protective

Eco-System on the earth as it provide many services to human society.

Wetlands are part of landscape that are defined by the presence of water.

Wetlands are area where presence of water determines or influences

most, if not all of any area‘s bio-geochemistry i.e. the biological, physio

and chemical characteristics of the wetlands. Wetlands are actually

93
biologically diverse and productive ecosystems, home to a variety of plant

life, including floating pond lilies, cattails, cypress, tamarack, and blue

spruce. In other words, wetlands support diverse communities of

invertebrates, which in turn support a wide variety of birds and other

vertebrates. Many ecologically and economically important species call

wetlands, home for at least part of their lives. Wetlands are also critical

habitat for migratory birds and waterfowl, including ducks, egrets, and

geese. It is said that only 6% of Earth‘s surface is covered by wetlands,

but provide a disproportionately high number of ecosystem services, in

addition to maintaining biodiversity. In a study conducted by Cherry J. A.

in 2011, published under heading of ―Ecology of Wetland Ecosystems:

Water, Substrate, and Life‖, it was observed, ―to be classified as a

wetland, presence of water must contribute to the formation of hydric

soils, which are formed under flooded or saturated conditions persisting

long enough for the development of anaerobic conditions during the

growing season; water conditions in wetlands can vary tremendously with

respect to the timing and duration of surface water inundation as well as

seasonal patterns of inundation‖.

95. Importance of wetlands was recognized internationally when

―Convention on Wetlands of International Importance‖ was held in 1971,

commonly known as ―Ramsar Convention‖ since it was held at a small

Iranian town of Ramsar. In ―Ramsar Convention‖, a wide variety of

natural and human made habitat types, ranging from rivers to coral reefs

were classified as wetlands. India was signatory to the said Convention.

96. Recognizing importance of wetlands and being signatory to Ramsar

Convention, in National Environment Policy, 2006, ecological services

provided by wetlands were recognized and it was emphasized that a

94
regulatory mechanism consistent with Ramsar Convention should be set

up to maintain ecological character of identified wetlands and develop

national inventory of such wetlands. It was given a statutory shape in

2010 when Wetlands (Conservation and Management) Rules, 2010

(hereinafter referred to as ‗Wetland Rules, 2010‘) were made by

Government of India in exercise of powers under Section 25 read with

Section 3 (1)(2)(v) and sub-section 3 of EP Act, 1986. The said Rules were

published in Government of India‘s Gazette Extraordinary, dated

04.12.2010. The term ‗Wetland‘ was defined in Rule 2(g) as under:

““Wetland” means an area or of marsh, fen, peatland or water;

natural or artificial, permanent or temporary, with water that is
static or flowing, fresh, brackish or salt, including areas of marine
water, the depth of which at low tide does not exceed six meters and
includes all inland waters such as lakes, reservoir, tanks,
backwaters, lagoon, creeks, estuaries and manmade wetland and
the zone of direct influence on wetlands that is to say the
drainage area or catchment region of the wetlands as
determined by the authority but does not include main river
channels, paddy fields and the coastal wetland covered under the
notification of the Government of India in the Ministry of Environment
and Forest, S.O. No. 114(E), dated the 19thFebruary, 1991
published in the Gazette of India, Extraordinary, Part II, Section 3,
sub-section (ii) of dated the 20th February, 1991;”

97. Wetlands, protected and regulated by Wetland Rules, 2010, were

described in Rule 3, as under:

“3. Protected wetlands.-Based on the significance of the functions

performed by the wetlands for overall well being of the people and
for determining the extent and level of regulation, the following
wetlands shall be regulated under these rules, namely-

(i) wetlands categorised as Ramsar Wetlands of International

Importance under the Ramsar Convention as specified in the
Schedule;

(ii) wetlands in areas that are ecologically sensitive and

important, such as, national parks, marine parks,
sanctuaries, reserved forests, wildlife habitats, mangroves,
corals, coral reefs, areas of outstanding natural beauty or
historical or heritage areas and the areas rich in genetic
diversity;

95
 (iii) wetlands recognised as or lying within a UNESCO World
Heritage Site;

(iv) high altitude wetlands or high altitude wetland complexes at

or above an elevation of two thousand five hundred metres
with an area equal to or greater than five hectares;

(v) wetlands or wetland complexes below an elevation of two

thousand five hundred metres with an area equal to or
greater than five hundred hectares;

(vi) any other wetland as so identified by the Authority

and thereafter notified by the Central Government
under the provisions of the Act for the purposes of these
rules.”

98. Wetland Rules, 2010 contemplated constitution of an Authority,

namely ―Central Wetlands Regulatory Authority‖, defined in Rule 2(e), to

be constituted under Rule 5. It contemplated constitution of Central

Wetlands Regulatory Authority. Restrictions and activities within

wetlands were provided in Rule 4. Sub-rule 1 of Rule 4 provided the

activities which are completely prohibited within the wetlands. Sub-rule 2

of Rule 4 detailed activities which could be undertaken without prior

approval of State Governments within the wetlands. Sub-rule 3 of Rule 4

conferred power upon Central Government to permit any of the

prohibited activities or non-wetland use in the protected wetland on the

recommendation of the Authority.

99. Rule 7 provided about other wetlands governed by different

Statutes as to how the same shall be regulated. It read as under:

“7. Overlapping provisions.-(1) The wetlands within the protected

areas of the National Parks and Wildlife Sanctuaries shall be
regulated by the provisions of Wildlife (Protection) Act, 1972 (35 of
1972).
(2) The wetlands within the protected or notified forest areas shall be
regulated by the provisions of the Indian Forest Act, 1927 (16 of
1927); the Forest (Conservation) Act, 1980 (69 of 1980); and the
Environment (Protection) Act, 1986 (29 of 1986).
(3) The gaps in the regulation of wetlands within the protected and
notified forest areas, if any, under the provisions of the Indian Forest
Act, 1927; Wildlife (Protection) Act, 1972; and Forest (Conservation)

96
 Act, 1980; shall be plugged by invoking provisions of the
Environment (Protection) Act, 1986.
(4) The wetlands situated outside the protected or notified forest
areas referred to in sub-rule (2) shall be regulated by the relevant
provisions of the Environment (Protection) Act, 1986 (29 of 1986).”

100. In supersession of Wetland Rules, 2010, another set of Rules have

been framed i.e. Wetlands (Conservation and Management) Rules, i.e.,

Wetland Rules, 2017, published in Government of India‘s Gazette

Extraordinary, dated 26.09.2017. The reasons for framing aforesaid

Rules are broadly same as were contained in Wetlands Rules, 2010. It

says that Wetlands, vital parts of the hydrological cycle are highly

productive Eco-systems which support rich bio-diversity and provide a

wide range of Eco-system services such as water storage, water

purification, flood mitigation, erosion control, aquifer recharge, micro-

climate regulation, aesthetic enhancement of landscapes while

simultaneously supporting many significant recreational, social and

cultural activities, being part of India‘s rich cultural heritage. And

wetlands are threatened by reclamation and degradation through

drainage and landfill, pollution (discharge of domestic and industrial

effluents, disposal of solid waste), hydrological alteration (water

withdrawal and changes in inflow and outflow), over-exploitation of

natural resources resulting in loss of bio-diversity and disruption in eco-

system services provided by wetlands. Referring to Article 51 A (g) of the

Constitution, Notification states that it is stipulated in the aforesaid

constitutional provision that it shall be the duty of every citizen of India

to protect and improve natural environment including forests, lakes,

rivers and wildlife and to have compassion for living creatures. It also

refers to India as a signatory to Ramsar Convention on Wetlands and

committed to conservation and wise use of all wetlands within its

97
territory. Giving reason for framing of new set of Rules after promulgation

of Wetlands Rules, 2010, Notification of 2017 said:

―And whereas conservation and wise use of wetlands can provide

substantial direct and indirect economic benefits to state and
national economy, and thereby the Central Government stands
committed to mainstreaming full range of wetland biodiversity
and ecosystem services in development planning and decision
making for various sectors;
And whereas the State Governments and Union Territory
Administrations need to take into account wetland ecosystem
services and biodiversity values likewise within their
developmental programming and economic well-being, also
taking into cognizance that land and water, two major ecological
constituents of wetland ecosystems, are enlisted as State subjects
as per the Constitution;

And whereas the Central Government considered it necessary to

supersede the Wetlands (Conservation and Management) Rules,
2010 for effective conservation and management of wetlands in the
country;

And whereas the Central Government had, in exercise of the

powers conferred by section 25, read with sub-section (1) and
clause (v) of sub-section (2) and sub-section (3) of section 3 of the
Environment (Protection) Act. 1986, published the draft Wetlands
(Conservation and Management) Rules, 2016, vide number G.S.R.
385 (E) dated 31st March, 2016 for information of the public likely
to be affected thereby; and notice was given that the said draft
rules would be taken into consideration by the Central Government
after expiry of a period of sixty days from the date on which copies
of the Gazette notification is made available to the public;

And whereas the Central Government has received the suggestions

and objections from the State Governments, Union Territories and
its organizations, individuals and civil society organizations on the
draft Wetlands (Conservation and Management) Rules, 2016;

And whereas the suggestions and objections received in response to

the above mentioned draft rules have been duly considered by the
Central Government in consultation with State Governments and
Union Territory Administrations.‖

101. Rule 2 defines certain terms used in Wetlands Rules, 2017. The

relevant terms ―authority‖, ―ecological character‖, ―integrated

management plan‖, ―wetlands complexes‖, ―wise use of wetlands‖ and

―zone of influence‖ are defined under:

―2. Definitions-
(1) In these rules, unless the context otherwise requires,-
(a) ―Act‖ means the Environment (Protection) Act, 1986;

98
 (b)―Authority‖ means the State Wetlands Authority or
Union Territory Wetlands Authority, as the case may
be;
(c) ―Committee‖ means the National Wetlands Committee
referred to in rule 6;
(d) ―ecological character‖ means the sum of ecosystem
components, processes and services that characterise
the wetlands;
(e) ―integrated management plan‖ means a document which
describes strategies and actions for achieving wise use
of the wetland and the plan shall include objectives of
site management; management actions required to
achieve the objectives; factors that affect, or may
affect, the various site features; monitoring
requirements for detecting changes in ecological character
and for measuring the effectiveness of management; and
resources for management implementation;
(f) ―Ramsar Convention‖ means the Convention on Wetlands
signed at Ramsar, Iran in 1971;
(g) ―wetland‖ means an area of marsh, fen, peat land or
water; whether natural or artificial, permanent or
temporary, with water that is static or flowing, fresh,
brackish or salt, including areas of marine water the
depth of which at low tide does not exceed six meters, but
does not include river channels, paddy fields, human-
made water bodies/tanks specifically constructed for
drinking water purposes and structures specifically
constructed for aquaculture, salt production, recreation
and irrigation purposes;
(h) ―wetlands complexes‖ means two or more ecologically
and hydrologically contiguous wetlands and may
include their connecting channels/ducts;
(i) ―wise use of wetlands‖ means maintenance of their
ecological character, achieved through implementation
of ecosystem approach within the context of sustainable
development;
(j) ―zone of influence‖ means that part of the catchment
area of the wetland or wetland complex,
developmental activities in which induce adverse
changes in ecosystem structure, and ecosystem
services.
(2) The words and expressions used in these rules and not defined,
but defined in the Act, shall have the meanings assigned to
them in the Act.‖
(Emphasis added)

102. Applicability of rules is provided in Rule 3 of Wetland Rules, 2017

as under:

―3. Applicability of rules.-These rules shall apply to the following

wetlands or wetlands complexes, namely:-
(a) wetlands categorised as ‗wetlands of international
importance‘ under the Ramsar Convention;

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 (b) wetlands as notified by the Central Government, State
Government and Union Territory Administration:

Provided that these rules shall not apply to the wetlands

falling in areas covered under the Indian Forest Act,
1927, the Wild Life (Protection) Act, 1972, the Forest
(Conservation) Act, 1980, the State Forest Acts, and the
Coastal Regulation Zone Notification, 2011 as amended
from time to time.‖

103. Restrictions of activities are provided in Rule 4 and it is to some

extent different from the earlier Rule 4 of Wetland Rules, 2010. New

Rule 4 of Wetlands Rules, 2017 reads as under:

―Restrictions of activities in wetlands—(1) The wetlands shall

be conserved and managed in accordance with the principle of
‗wise use‘ as determined by the Wetlands Authority.

(2) The following activities shall be prohibited within the

wetlands, namely,-

(i) conversion for non-wetland uses including encroachment

of any kind;

(ii) setting up of any industry and expansion of existing

industries;

(iii) manufacture or handling or storage or disposal of

construction and demolition waste covered under the
Construction and Demolition Waste Management Rules,
2016; hazardous substances covered under the Manufacture,
Storage and Import of Hazardous Chemical Rules, 1989 or
the Rules for Manufacture, Use, Import, Export and Storage
of Hazardous Micro-organisms Genetically engineered
organisms or cells, 1989 or the Hazardous Wastes
(Management, Handling and Transboundary Movement)
Rules, 2008; electronic waste covered under the E-Waste
(Management) Rules, 2016;

(iv) solid waste dumping;

(v) discharge of untreated wastes and effluents from

industries, cities, towns, villages and other human
settlements;

(vi) any construction of a permanent nature except for boat

jetties within fifty metres from the mean high flood level
observed in the past ten years calculated from the date of
commencement of these rules; and,

(vii) poaching.
Provided that the Central Government may consider
proposals from the State Government or Union Territory

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 Administration for omitting any of the activities on the
recommendation of the Authority.‖
(Emphasis added)

104. Wetlands Rules, 2017 contemplate ―Wetland Authorities‖ in every

State to be constituted by Central Government as ―State Wetlands

Authority‖ and composition thereof is given in Rule 5 sub-rule (i). Sub-

rule (ii) of Rule 5 contemplates ―Union Territory Wetland Authority‖ for

each Union Territory which is also to be constituted by Central

Government and its composition is given therein. Rule 5 sub-rule (4)

details the powers and functions to be performed by State/Union

Territory Wetlands Authorities. Rule 6 (1) talks of a ―National Wetland

Committee‖ to be constituted by Central Government and composition

thereof is given therein. Rule 6 sub-rule 3 thereof details the functions of

National Wetland Committee. Rule 7 makes it obligatory to the concerned

department of State Government/Union Territory Administration to

prepare a ‗brief document‘ for each of the wetland identified for

notification within one year from the date of publication of Wetland

Rules, 2017, giving details as provided in sub-rule (i) it reads as under:

―7. Delegation of powers and functions to the State

Governments and Union Territory Administrations.—
(1) The concerned Department of the State Government or Union
Territory Administration shall, within a period of one year from
the date of publication of these rules, prepare a Brief Document
for each of the wetland identified for notification, providing:—
a) demarcation of wetland boundary supported by
accurate digital maps with coordinates and validated
by ground truthing;
b) demarcation of its zone of influence and land use
and land cover thereof indicated in a digital map;
c) ecological character description;
d) account of pre-existing rights and privileges;
e) list of site-specific activities to be permitted within
the wetland and its zone of influence;
f) list of site specific activities to be regulated within
the wetland and its zone of influence; and
g) modalities for enforcement of regulation;‖
(Emphasis added)

101
105. Based on the aforesaid ‗brief document‘, concerned authority is

required to make recommendation to State Government or Union

Territory Administration, as the case may be, for notifying ‗wetlands‘, vide

sub-rule (2) of Rule 7. Thereafter, State Government or Union Territory

Administration, as the case may be, after considering objections, if any,

from concerned and affected persons, notify ‗wetlands‘ in the official

gazette within a period, not exceeding 240 days from the date of

recommendation by the Authority.

106. Therefore, for identification of ‗wetland‘ and notification a specific

time schedule is provided in Wetland Rules, 2017. The identification has

to be made within one year of publication of Rules. Since, Rules were

published in Gazette dated 26.09.2017, process of identification had to

be completed by 26.09.2018. The recommendation is to be made after

giving opportunity of objections. The notification has to be issued in 240

days and not beyond that. These 240 days would commence from the

date of recommendation.

107. In respect of ‗wetlands‘ of transboundary, i.e., more than one State,

Central Government will coordinate for preparation of ‗brief document‘

and based on the ‗brief document‘, National Wetland Committee is

required to make recommendation to Central Government who shall

notify ―identified wetland‖ within a period not exceeding 240 days after

considering objections, if any, from concerned and affected persons.

108. Though Wetlands Rules were framed in 2010 and substituted by

new set of rules in 2017, still neither Authority as contemplated under

Rules 2010 was constituted nor wetlands were identified and notified,

following procedure prescribed therein.

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109. This issue came up before Supreme Court in M.K. Balakrishnan

vs. Union of India, Writ Petition No. 230 of 2001. Here a writ petition

under Article 32 of Constitution of India was filed in 2001 seeking for

appropriate directions for conservation of wetlands. Supreme Court vide

order dated 26.03.2009 (reported in (2009) 5 SSC 507) observed that

wetlands would include ponds, tanks, canals, creeks, water channels,

reservoirs, rivers, streams and lakes. Court suo-moto expanded scope of

writ petition. It further said that there is acute shortage of water in India

and one of the main reasons therefor, is that stock water conservation

bodies like ponds, tanks etc. have been filled up by some greedy persons

by constructing building, shops etc. Court said that the rivers in India

are drying up, ground water is repeatedly depleted and canals are

polluted. Court issued notice to Secretary, Ministry of Science and

Technology, Union of India inquiring as to what measures have been

taken to solve water shortage in the country and for implementing

recommendation made by Court in State of Orissa v. Govt. of India,

2009 (5) SSC 492.

110. Another order was passed by Supreme Court on 10.09.2014 in

M.K. Balakrishnan & Ors. v. Union of India (supra), observing that

under Wetland Rules, 2010 Central Government was conferred powers to

constitute Central Wetlands Regulatory Authority but there was nothing

on record to show whether such authority was functional. Court was

informed that National Wetlands Inventory and Assessment Project

sponsored by MoEF&CC, Government of India, through Space

Applications Centre, ISRO, Ahmedabad has undertaken task of making

an inventory of all wetlands in the country in 2010 and inventory of such

wetlands was figured. Court thus directed Government of India to inform

whether Authority contemplated under Rule 5 of Wetland Rules, 2010

103
was functional and if so, its composition and whether any exercise for

identification and classification of wetlands would be necessary after

preparation of inventory of wetlands with the help of Space Applications

Centre, ISRO, Ahmedabad.

111. An Interlocutory Application was filed being IA No. 16/2014,

praying that States and Government of India should be restrained from

giving any permission for construction and infrastructure purposes in

and around known ―wetland areas‖. On this application also Supreme

Court issued notices to Governments.

112. When the matter came up on 01.12.2016 (reported in (2017) 7

SCC 809), further time was prayed by the respondents Counsel, which

was allowed. Next order is dated 17.01.2017 (reported in (2017) 7 SCC

809), when a reference was made to certain orders passed by this

Tribunal. Counsel for petitioner sought time to examine those judgments

and also whether matter be allowed to be considered by Tribunal with

other pending matters. On 31.01.2017 (reported in (2017) 7 SCC 810),

when matter came up before Supreme Court, Government of India

informed that draft Wetlands Rules, 2016 have been prepared. Court

enquired whether Rules have been circulated and finalized or not and

also whether Central Wetlands Regulatory Authority, whose term was

likely to expire on 14.12.2017 has been reconstituted or not. Government

of India was also required to tell what specific steps were taken to

preserve 26 wetlands covered by Ramsar Convention. Next order is dated

08.02.2017 (reported on (2017) 7 SCC 810), when Court was informed

that Draft Rules were published inviting objections and in response

thereto 175 comments were received. MoEF&CC also informed that term

of Committee needs to be extended. However, Court issued direction that

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Wetland Rules, 2016 shall be notified on or before 30.06.2017. With

regard to preservation of 26 wetlands covered by Ramsar Convention,

1971, Court found that only some amount was disbursed by Union of

India from time to time but what specific steps were taken for using the

aforesaid funds, was not disclosed. Considering ―National Wetland

Inventory and Assessment‖, which was filed by Union of India alongwith

its additional affidavit, Court found that the information brochure on

page 11 thereof shows that 2,01,503 wetlands have been mapped. All

these wetlands have an area of more than 2.25 ha. Court observed that

as a first step ―brief document‖ with regard to these 2,01,503 wetlands

should be obtained by Union of India from respective State Governments

and to take follow-up action. Further, considering the fact that with the

passage of time there is possibility that some wetlands may disappear,

Court said in para 23, as under:

“Accordingly, we direct the application of the principles of Rule

4 of the Wetlands (Conservation and Management) Rules, 2010
to these 2,01,503 wetlands that have been mapped by the
Union of India. The Union of India will identify and inventorize all
these 2,01,503 wetlands with the assistance of the State
Governments and will also communicate our order to the State
Governments which will also bind the State Governments to the
effect that these identified 2,01,503 wetlands are subject to the
principles of Rule 4 of the Wetlands (Conservation and Management)
Rules, 2010, that is to say:

“(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of existing
industries;
(iii) manufacture or handling or storage or disposal of
hazardous substances covered under the Manufacture,
Storage and Import of Hazardous Chemical Rules, 1989
notified vide S.O. No. 966(E), dated the 27th November,
1989 or the Rules for Manufacture, Use, Import, Export and
Storage of Hazardous Micro-organisms/Genetically
engineered organisms or cells notified vide GSR No.
1037(E), dated the 5th December, 1989 or the Hazardous
Wastes (Management, Handling and Transboundry
Movement) Rules, 2008 notified vide S.O. No. 2265(E),
dated the 24th September, 2008;
(iv) solid waste dumping: provided that the existing
practices, if any, existed before the commencement of these

105
 rules shall be phased out within a period not exceeding six
months from the date of commencement of these rules;
(v) discharge of untreated wastes and effluents from
industries, cities or towns and other human settlements:
provided that the practices, if any, existed before the
commencement of these rules shall be phased out within a
period not exceeding one year from the date of
commencement of these rules;
(vi) any construction of a permanent nature except for
boat jetties within fifty metres from the mean high
flood level observed in the past ten years calculated
from the date of commencement of these rules;
(vii) any other activity likely to have an adverse impact on the
ecosystem of the wetland to be specified in writing by
the Authority constituted in accordance with these rules.”

113. M.K. Balakrishnan v. Union of India (supra) again came up

before the Bench on 04.10.2017. Court‘s order shows that Government

of India informed that Wetlands Rules, 2017 have been notified in

26.09.2017. Further, State Wetland Authority and National Wetland

Committee under Rules 5 and 6 of Wetland Rules, 2017 have been

constituted with regard to identification of wetland and Notification,

Court said:

“With regard to the brief documents required to be furnished under

the old Rules, it appears that only ten States and one Union Territory
have responded. It appears that there is now no necessity of
brief documents under the new Rules. We make it clear that this
does not mean that the earlier brief documents already submitted
can be discarded completely. The contents of these brief documents
will still be followed as far as the implementation of the Wetlands
(Conservation and Management) Rules, 2017 is concerned.

Finally, with regard to the satellite images, we are told that the
Space Application Centre would require between 12 to 18 months to
make an inventory of 1,75,740 wetlands as they exist today. We
make no comment on this but request learned Additional Solicitor
General to re-check with the Space Application Centre since the
wetlands are diminishing in our country at a very fast rate. It is very
likely that many more will disappear by the time the task is
completed by the Space Application Centre.

We make it clear and reiterate that in terms of our order

dated 8th February, 2017, 2,01,503 wetlands that have been
mapped by the Union of India should continue to remain
protected on the same principles as were formulated in Rule 4
of the Wetlands (Conservation and Management) Rules, 2010.”
(Emphasis applied)

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114. It is not disputed before us that ―Kaikondarahalli Lake‖ and

―Kasavanahalli Lake‖; both the lakes are identified as wetland and

mentioned in ―National Wetland Inventory and Assessment‖ document, in

respect of State of Karnataka, therefore, directions of Supreme Court as

quoted above in M.K. Balakrishnan v. Union of India (supra) applying

Rule 4 to said lakes, are applicable.

115. At provincial level, we find some attempt to protect ‗wetlands‘ in the

provisions made by Local Bodies. Though the term ‗wetland‘ as such, has

not been used in the RMP-2015 Bangalore, but for protecting water

bodies, provision was made therein. RMP-2015 envisaged a compact,

balanced and equitable, urban growth for Bangalore City. Zonal

Regulations are integral part of RMP-2015. FAR ratio has been provided

in Chapter 3.0 and states that FAR or Floor Area Ratio includes

escalators, open balconies, staircase and corridors. However, it shall

exclude or exempt parking space, main stair case room, lift shaft, lift

wells and lift machines rooms, ramps, ventilation ducts, sanitary ducts

and overhead tanks. Para 3.12 provides that all clearances shall be

obtained from different authorities and reads as under:-

―3.12) No Objection Certificates:

i. For all Development Plans, Apartment buildings and

Residential layouts which come under the category
stipulated by the KSPCB, necessary NOC from KSPCB
(KSPCB shall mention the need for environment
clearance if any in the NOC) shall be furnished.

ii. For all buildings with a height of 24.0m and above, NOC
from Fire Force in addition to NOC from Pollution Control
Board (KSPCB shall mention the need for environment
clearance if any in the NOC) shall be furnished.

iii. For Cinema theatres, the setbacks and other provisions

shall be as per Karnataka Cinematography Act and Rules.

iv. NOC from Airport Authority of India shall be furnished

where ever applicable.‖

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116. Regulations for main land use are in Chapter 4 and relevant paras

4.12.1 and 4.12.2(ii) read as under:-

―4.12.1) Description

The natural and manmade features meant for environmental

conservation and preservation, including water bodies, forests and
drains; parks, playgrounds, burial grounds and crematoria.

ii) Valley/drain

Within the demarcated buffer for the valley the following uses
are allowed:

i. Sewerage Treatment Plants and Water treatment plants.

ii. Roads, pathways, formation of drains, culverts, bridges, etc.

which will not obstruct the water course, run offs,
channels.

iii. In case of water bodies a 30.0 m buffer of ‗no

development zone‘ is to be maintained around the lake
(as per revenue records) with exception of activities
associated with lake and this buffer may be taken into
account for reservation of park while sanctioning plans.

iv. If the valley portion is a part of the layout/ development

plan, then that part of the valley zone could be taken
into account for reservation of parks and open spaces
both in development plan and under subdivision regulations
subject to fulfilling section 17 of KTCP Act, 1961 and sec 32
of BDA Act, 1976.

v. Any land falling within the valley for which permission

has been accorded either by the Authority or Government,
and then such permission shall be valid irrespective of the
land use classification in the RMP 2015. Fresh
permissions for developments shall not be accorded in
valley zone.

NOTE:

Drains: The drains have been categorized into 3 types namely

primary, secondary and tertiary. These drains will have a
buffer of 50, 25 and 15m (measured from the centre of the
drain) respectively on either side. These classifications have
been used for the drains newly identified while finalizing the
RMP 2015. In case the buffer has not been marked due to
cartographical error for any of the above types of drains, then
based on the revenue records buffer shall be insisted in all such
cases without referring the land use plan while according
approval for building/development/layout plan. Permissions in
sensitive areas earmarked on the land use plan shall be
considered only by the planning Authority.‖

108
117. RMP-2015 was issued in 2007 and, therefore, did not have the

benefit of statutory provisions relating to ‗wetlands‘. The wetlands

provisions took shape of statute under EP Act, 1986 when Wetland

Rules, 2010 were issued. The definition of ‗wetland‘ in Rule 2(g) clearly

talks of relevant area including zone of direct influence on wetlands that

is to say the drainage area or catchment region of wetlands etc. as

determined by authority. The ―zone of influence‖ was not defined in

Wetland Rules, 2010 but has been defined in Wetland Rules, 2017 under

Rule 2(j). We do not find that these terms have been considered in any

other matter but in the context of water bodies, beside the area which is

directly covered by water bodies, which are normally known as Core

Zone, the concept of ‗Buffer Zone‘ surrounding the core zone of water

bodies has been considered in many matters and in our view, zone of

influence is a wider term and would include this ‗buffer zone‘.

118. It cannot be doubted that in the matter of water bodies, besides

the area of ‗core zone‘, any activity immediately thereafter, if allowed,

would have adverse impact and cause damage to ‗wetland‘ and its

surrounding for the reason that development of flora and fauna etc. is not

confined only to ‗core zone‘ but spread in surrounding area also. The

surrounding area to which the flora and fauna connected with concerned

wetland is spread, would be within the term of ‗zone of influence‘.

119. Development in the manner so that environment may also be

enjoyed by the people at large is necessary for the ultimate development

of the area and the country as a whole but no development can be

allowed which may have impact otherwise on natural resources and its

surrounding areas causing degradation, depletion, extinction or damage

109
to flora and fauna which constitute a major portion of eco-system and

ordinarily present with every wetland.

120. In Vellore Citizens‟ Welfare Forum v. Union of India, (1996) 5

SCC 647, Court said that traditional notion of conflict and development

is no longer acceptable and ‗sustainable development‘ is the answer.

121. In Indian Council for Enviro-Legal Action v. Union of India,

(1996) 5 SCC 281, describing principle of ‗sustainable development‘,

Court said that economic development should not be allowed to take

place at the cost of ecology or by causing widespread environment

destruction and violation. Court also said that at the same time,

necessity to preserve ecology and environment should not hamper

economic and other developments. Thus, development and environment

both must go hand in hand and there should not be development at the

cost of environment and vice versa. There should be development by

taking due care and ensuring protection of environment.

122. The concept of ‗Buffer Zone‘ has been taken note in several

authorities like M.C. Mehta v. Union Of India & Ors, (1996) 8 SCC

462, where question of impact of mining operation on the ecologically

sensitive areas of Badkal Lake and Surajkund, Haryana, was considered.

Court observed that in order to preserve environment and control

pollution within the vicinity of the above tourist resorts, it was necessary

to stop mining in that area. Question was, ―what should be the extent of

that area‖. NEERI‘s report dated 20.04.1996 was obtained who had

opined that 200 meters green belt be developed at 1 km radius around

the boundaries of two lakes. Court observed that this means 1200 meters

are required for green belts. Then further 800 meters should be allowed

as ―cushion to absorb‖ the air and noise pollution generated by mining

110
operations. Court ultimately passed order that there would be no mining

activity within two km radius of the above tourist resorts.

123. In M.C. Mehta (Taj Trapezium Matter) v. Union of India, (1997)

2 SCC 353, damage being suffered by Taj Mahal due to air pollution was

considered and Court said that no industry shall be permitted to run

causing air pollution in ―Taj Trapezium Zone‖.

124. Similarly, in M.C. Mehta (Taj Trapezium Pollution) v. Union of

India, (2001) 9 SCC 235, for protecting damage to Taj Mahal, Court

directed that no brick-kiln within 20 km radial of Taj Mahal and other

significant monuments in Taj Trapezium and Bharatpur Bird Sanctuary

shall be allowed to operate.

125. In M.C. Mehta v. Union of India, (2009) 6 SCC 118, Court said

that environment and ecology are national assets. They are subject to

intergeneration equity.

126. In N.D. Jayal v. Union of India, (2004) 9 SCC 362, Court held

that:

“right to development cannot be treated as a mere right to economic

betterment or cannot be limited as a misnomer to simple construction
activities. The right to development encompasses much more than
economic well-being, and includes within its definition the guarantee
of fundamental human rights. ……… The Right to development
includes the whole spectrum of civil, cultural, economic, political and
social process, for the improvement of people‟s well-being and
realization of their full potential. It is an integral part of human
rights.”

127. In K. Guruprasad Rao v. State of Karnataka, (2013) 8 SCC

418, it was observed that preservation and protection of ancient and

historical monuments due to mining activities in the nearby area was of

importance. The Committee appointed by Court suggested that the area

which is directly covered by such ancient monuments not only should be

111
protected but there should be more area beyond that which should be

protected and both these areas were termed as ‗Core Zone‘ and ‗Buffer

Zone‘. This recommendation was accepted. Court said that creation of

‗Core Zone‘ and ‗Buffer Zone‘ would appropriately create balance between

development activities, protection and preservation of ancient

monuments.

128. When it comes to the question of fragile ecology, it has been held

that it has to be preserved with more caution and care. In Animal and

Environment Legal Defence Fund v. Union of India & Ors., (1997) 3

SCC 549, question of protection of Wildlife Forest Tiger Reserve was

considered and Court said that every attempt must be made to preserve

fragile ecology of forest area and protect Tiger Reserve. Simultaneously,

rights of Tribals, formerly living in the area, to keep body and soul

together must also receive proper consideration.

129. In Pradeep Krishen v. Union of India, (1996) 8 SCC 599, Court

pointed out that total forest cover in our country is far less than the ideal

minimum requirement of the total land and we cannot, therefore, afford

any further shrinkage in forest cover in our country.

130. In M.C. Mehta v. Kamal Nath & Ors., (1997) 1 SCC 388,

referring to the ―Doctrine of Public Trust‖ it was held that the said

doctrine primarily rests on the principle that certain resources like air,

sea, waters and the forests have such a great importance to the people as

a whole that it will be wholly unjustified to make them a subject of

private ownership. The doctrine enjoins upon Government to protect

resources for enjoyment of the general public rather than to permit their

use for private ownership or commercial purposes.

112
131. In Tata Housing Development Co. Ltd. v. Aalok Jagga & Ors.,

(2020) 15 SCC 784, shorter buffer area in respect of Sukhna Wildlife

Sanctuary was deprecated and it was held that construction of residential

project within a short distance from Wildlife Sanctuary cannot be

permitted.

132. In the present case, in respect of Bangalore itself, issue of ‗Buffer

Zone‘ was considered by Tribunal in Forward Foundation & Ors.

(supra). The issue of ‗Buffer Zone‘ of wetland and Storm Water Drains,

whether primary, secondary or tertiary, in the contest of ‗Agara Lake‘ and

‗Bellandur Lake‘ in Bengaluru, State of Karnataka was considered.

133. Three applicants namely, Forward Foundation, a Charitable Trust

having its registered office at 24/B, Haralur Village, HSR Layout Post

Bangalore-560102; Praja RAAG, Society registered under Karnataka

Societies Registration Act, 1960 and having its registered office at C-103,

Mantri Classic, 4th Block, Koramangala, Bangalore-560034 and

Bangalore Environment Trust, registered office at A 1-Chartered Cottage,

Langford Road, Bangalore 560025, filed OA No. 222/2014. They

challenged allotment of land, alleging to be ecologically sensitive, by

Karnataka Industrial Area Development Board (hereinafter referred to as

‗the KIADB‘) to M/s. Mantri Techzone Pvt. Ltd. (hereinafter referred to as

‗Project Proponent i.e. PP) vide notifications dated 23.04.2004 and

07.05.2004, respectively, for setting up Software Technology Park,

Commercial and Residential complex, Hotel and Multi Level Car Parks.

In the draft Master Plan of BDA, land was identified as ‗Protected Zone‘

but in Master Plan finalized by BDA, it was identified as ‗Residential

Sensitive‘. Revenue Map shows multiple Rajakaluves (Storm Water Drain

i.e. SWD) on the land in dispute. It was alleged that the project sit right

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on the catchment and wetland area which feeds Rajakaluves, which in

turn drains rain water into ‗Bellandur Lake‘. SEIAA, Karnataka required

PP to submit a revised NOC from BWSSB for the project. It is also stated

that project lies between Balendur Lake and Agara Lake. PP was to take

protective measures to spare ‗Buffer Zone‘ around Rajakaluves and also

to commit that no construction would be carried out in the ‗Buffer Zone‘.

It was alleged that NOC was issued covering 17404 square meters

whereas built up area, as noted by SEAC, Karnataka, was 1350454.98

square meters. It was alleged that PP misrepresented facts before

BWSSB for obtaining NOC stating that it was required only for residential

units. KSPCB granted clearance on 04.09.2012, subject to fulfilling

various conditions including that PP shall leave ‗Buffer Zone‘ all along the

valley and towards the lake. Allegations for violation of various

conditions of consent and EC were also made. Besides that, project was

right in the midst of a fragile wetland area which ought not be have been

disturbed by development activity. It was alleged that fragile

environment of catchment area has been exposed to grave and

irreparable damage besides disturbing and damaging Rajakaluves.

Proposed construction would affect the ground water table and Bore-

wells which were the only source of water for thousands of households,

fishing and agriculture which depends on Bellandur Lake, would also be

severely affected. Applicants relied upon a Joint Legislative Committee

Report of July 2005 under Chairmanship of Shri A.T. Ramaswamy

stating that there were 262 water bodies in Bangalore city in 1961 which

drastically came down because of trespass and encroachments. About

840 kms of Rajakaluves was encroached upon at several places and had

become sewage channels. Another report relied upon was that of a

Committee under Chairmanship of Hon‘ble N.K. Patil, J. suggesting

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immediate remedial action in order to remove encroachments on the lake

area, Rajakaluves and preservations of lakes in and around Bangalore

city. Other Expert Committees including Lakshman Rau Committee‘s

reports were also cited on the matter of preservation, restoration or

otherwise of existing banks in Bangalore Metropolitan area which had

recommended to maintain good water surface in Bellandur Lake and

ensure that water in lake is not polluted. An Advisory was issued by

Government of India in August 2013 on conservation and restoration of

water bodies in urban areas.

134. Matter was contested by PP in Forward Foundation and Ors.

(supra) stating that it was incorporated with the objective of establishing

an Information Technology Park and R & D Centre with facilities such as

residential complexes, parks, educational centers and other allied

infrastructure within a single compound. PP submitted a proposal to

establish such Information Technology Park and other facilities to State

Government and requested for allotment of land for the said project. A

High Level Committee considered proposal on 21.06.2000. It was

approved by State Government on 06.07.2000. State High Level

Committee was informed by PP that project required 110 acres of land,

25 MW of power and 4 lakh liters of water per day from BWSSB. The

land for project was initially notified vide Notification dated 10.02.2004

but subsequently it was allotted vide letter dated 28.06.2007 and Lease-

cum-Sale Agreement was executed on 30.06.2007. Considering overall

development in Bangalore city, there was a proposal of a Mixed Use

Development Project consisting of an Information Technology Park,

residential apartments, retail, hotel and office buildings with a total built

up area of 1350454.98 square meters. Project was conceived as a Zero

Waste discharge and located one and a half kms. away from the

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southern-side of Bellendur Lake. Towards the North, adjacent to project,

lay vast stretches of land belonging to Defence, and, towards East, lay the

project of respondent-10 (therein) and another developer who was also

developing a project on the western side. Plan was sanctioned on

04.07.2007 and renewed from time to time. Airport authority of India

issued NOC on 09.04.2010; Bharat Sanchar Nigam Ltd. gave clearance

vide letter dated 16.04.2010 and BWSSB issued NOC on 26.04.2011 for

portion of proposed project. Bangalore Electric Supply Company Ltd.

(hereinafter referred to as ‗BESCOM‘) granted NOC; Environmental

Clearance was issued by SEIAA, Karnataka vide letter dated 17.04.2012;

Director General of Police issued NOC and KSPCB also accorded consent

vide order dated 04.09.2012. The modified Building Plan was approved

by KIADB vide letter dated 30.08.2012. PP claimed that it has not

violated any conditions of EC or consent or environmental laws and has

also not caused any damage to ecology or environment. It denied the

contention that construction activity has blocked Rajakaluves and

adversely affected the lake. It was also claimed that it has already spent

a sum of Rs. 306.73 crores on the project towards procurement of men

and material, machinery, infrastructure, medical, sanitary facilities etc.

and also availed financial assistance from various banks and financial

institutions towards construction and execution of project; and various

contracts were also signed by third parties.

135. KIADB while admitting to have approved building drawings and

modified building drawings, stated, that PP was required to comply with

Ecology and Environment Rules and obtain approvals from Development

Authority and Pollution Control Board. Development Authority informed

KIADB that construction activity in the catchment area in Bellandur Lake

could drastically impact lake with deleterious effects and asked it to stop

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construction activity whereupon a decision was taken by Board on

21.12.2013 to keep in abeyance the approval accorded and same was

communicated to PP on 02.01.2014. PP was also directed to stop all

construction activities on the allotted land. PP challenged it before

Karnataka High Court which granted stay vide order dated 21.01.2014.

Development Authority supported the case of applicant-Forward

Foundation & Ors. stating that it was not aware of the project and came

to know only when certain newspapers published reports. Thereupon

officials visited the site and found large scale construction activities in

the catchment area of Bellandur Lake and also that there was change in

land use which in turn could directly affect catchment area of Bellandur

Lake. Wetland area of Agara Lake had also shrunk which originally

formed irrigation area for adjoining agricultural lands. Then it

questioned the decision of KIADB and requested to get construction

activities stopped and re-classify land as non-SEZ area.

136. Before Tribunal, matter was first considered vide judgment dated

07.05.2015. Tribunal formulated following questions for determination:

“1. Whether the application filed by the applicants and supported by

respondent Nos. 11 and 12, is barred by time and thus, not
maintainable?

2. Whether the petition as framed and reliefs claim therein, disclose

a cause of action over which this Tribunal has jurisdiction to
entertain and decide the application under the provisions of the NGT
Act, 2010?

3. Whether the present application is barred by the principle of res

judicata and/or constructive res judicata?

4. Whether the application filed by the applicants should not be

entertained or it is not maintainable before the Tribunal, in view of
the pendency of the Writ Petitions 36567-74 of 2013, before the
Hon‟ble High Court of Karnataka? And

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 5. What relief, if any, are the applicants entitled to? Should or not the
Tribunal, in the interest of environment and ecology issue any
directions and if so, to what effect?”

137. The first question with regard to limitation was answered in favour

of applicants holding that the application was not barred by limitation.

Second question was also answered in favour of applicants observing that

allegations have been made that construction is being carried in the

‗Buffer Zone‘ as well as over and around Rajakaluves; project is in the

mist of fragile wet land area; project area is located between two lakes

and therefore construction is in violation of Rule 4 of Wetland Rules,

2010; there is violation of ‗Buffer Zone‘ restrictions; NOC by respondent-5

covered only 17404 square meters while build up area is 1350454.98

square meters, thus NOC was partial; EC was obtained without

disclosure of correct facts, construction activities have severely disturbed

and damaged Rajakaluve-running through the entire land and likely to

result in disappearance thereof; under NGT Act, 2010, Tribunal has three

jurisdictions; original appellate and special, enabling it to grant reliefs of

compensation, restitution of property and environment growth; Section

14 gives a very wide jurisdiction to resolve and pass orders to decide

disputes where substantial question relating to environment including

enforcement of legal right relating to environment is involved and such

question arises from the implementation of enactments, specified under

Schedule 1; definition of ‗environment‘ is very wide and comprehensive

enough to take within its ambit all matters relating to environment;

protection and improvement of environment are two fundamental aspects

of environmental legislations; and in entirety, application does disclose

cause of action that would squarely fall within the ambit of jurisdiction of

Tribunal vested in it under Sections 14 & 15 of NGT Act, 2010.

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138. Questions 3 & 4, in Forward Foundation & Ors. (supra) were

also answered in favour of applicants i.e. against respondents. We are

skipping details of the same, being not relevant for this case.

139. On question 5, Tribunal discussed allegations made by applicants

with regard to violation of environmental laws. It observed in para 53 of

judgment that most important aspect to be deliberated by it is,

allegations of construction on the ‗wetlands‘ and catchment areas of

water bodies i.e. Agara and Bellendur lakes. Meaning and definition of

‗wetlands‘ was considered and it was held that in common parlance,

‗wetlands‘ are the areas where water is the primary factor controlling

environment and associated plant and animal life. Indian definition of

‗wetland‘ is an area of marsh, fens, heat land or water; natural or

artificial, permanent or temporary, with water that is static or flowing,

fresh, brackish or salty including areas of marine water, the depth of

which at low tide does not exceed 6 meters. It includes all inland waters

such as lakes reservoirs, tanks, backwaters, lagoons, straits, estuaries

and men made wetland, and zone of direct influence on wetlands that is

to say the drainage area or catchment region of wetlands as determined

by authority but does not include main river, channels, paddy pits, and

costal wetland covered under Notification of Govt. of India dated

19.02.1991.

140. Tribunal observed that Bengaluru city has many artificial lakes

built for various ideological purposes, mainly to serve needs of irrigated

agriculture and other allied purposes; study placed on record shows that

lakes of Bengaluru occupy about 4.8% of city‘s geographical area (640

square meters) covering both urban and non-urban areas; number of

lakes had rapidly falling and reduced to 81 in 1985; quality of water has

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reduced due to discharge of industrial affluent and domestic sewage;

conversation of lakes for residential, agricultural and industrial purposes

has engulfed many lakes. Further Tribunal said that water bodies in

Bengaluru Urban district were subject to intense pressure due to the

process of urbanization and increasing pollution resulting in loss of inter-

connectivity in contrast to water bodies in rural Bangalore where less

pressure from direct human activities was noticed. In 1995, ‗National

Lake Conservation Authority‘ (hereinafter referred to as ‗NLCA‘) came up

with National Lakes Conservation Plan (hereinafter referred to as ‗NLCP‘)

for Bangalore. It specifically aimed to raise highest state of environmental

alarm for dwindling quality of remnants of the city‘s lakes. NLCP for

Bengaluru came with the theme of integrated lake ecology with water

quality. This plan aimed upon improving urban sanitation and health

conditions, especially for weaker sections of society living within the lake

catchment area. Plan also called for eco-friendly, low cost waste

management bio system like engineered wetlands. In 2000, Research and

Development Wing of KSPCB published report on comprehensive

monitoring of lakes, in and around Bengaluru metropolitan area, to

assess the state of water quality. As per Report, water quality of 44

selected lakes revealed that most lakes still remain highly polluted. ―Lake

Development Authority‖ constituted in January, 2002 identified 60 lakes

for immediate restoration. Stressing upon Wetland Management

Programme and what is needed, Tribunal said:-

“65. The wetland management program generally involves

activities to protect, restore, manipulate, and provide for the
functions and values emphasizing both quality and acreage by still
advocating sustainable usage of them [Walters, C. 1986.].
Management of wetland ecosystems requires an intense monitoring,
increased interaction and co-operation among the various agencies
(state departments concerned with environment, soil, natural
resource management, public interest groups, citizen groups,
agriculture, forestry, urban planning and development, research
institutions, government, policy makers, etc.). Such management

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 goals should not only involve buffering wetlands from any
direct human pressures that could affect the wetlands normal
functions, but also in maintaining important natural
processes that operate on them that may be altered by human
activities. Wetland management has to be an integrated approach
in terms of planning, execution and monitoring requiring effective
knowledge on a range of subjects from ecology, economics,
watershed management, and planners and decision makers, etc. All
this would help in understanding wetlands better and evolving a
more comprehensive solution for long-term conservation and
management strategies.

We have noticed the above studies on record to bring clarity in

regard to the importance of these water bodies and need-oriented
significance to maintain the wetlands and catchment areas
in the interest of environment, ecology, biodiversity and
hydrological balance. The merit or otherwise, of these cases have to
be examined in light of these studies, which is a matter of record.”
(Emphasis added)

141. Tribunal also refers to a report of Environmental Information

System (ENVIS), Centre for Ecological Sciences, Indian Institute of

Science, Bengaluru on the need for ―Conservation of Bellandur Wetlands:

Obligation of Decision Makers to Ensure Intergenerational Equity‖. It is

said that removal of wetlands will affect functional ability of lake and it

would result in death of Bellendur Lake. RMP-2015 mentioned, for valley

regions, ‗No Development Zone‘ and provided ‗Buffer Zone‘ of 30 meters

around the lake while in respect of Primary, Secondary and Tertiary

Rajakaluves/Storm Water Drains, it provided ‗Buffer Zone‘ of 50, 25 and

15 meters, respectively, which is to be measured from center of the drain

and on either side of the drain.

142. Tribunal said that to analyze environmental and ecological impact

on the project, matter may be divided in two parts: (1), what are the

irregularities or breaches by PP, i.e. respondents-9 and 10, and; (2) likely

impact of these projects upon the environment and ecology of the area in

question, particularly on the water bodies.

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143. Tribunal summed up its conclusion in para 72. It was held that

there is sufficient material by way of record, Google images and other

documents to show that Bellandur Lake and even other lakes for that

matter have wetlands and catchment areas. There are encroachments on

Rajakaluves as well as catchment areas of water bodies and adverse

impact of this colossal mixed development project got attention of all

concerned, resulting in inspection by Lake Development Authority and

other authorities and comments on adverse impacts on environment and

ecology.

144. An argument was raised in Forward Foundation & Ors. (supra)

that similar construction and projects of others are also existing or in

process. Tribunal in para 79 of judgment dated 07.05.2015, noted the

above submissions, and said:-

“It is the contention of the respondent nos. 9 and 10 that there are
large numbers of other projects located around these lakes. If that be
so, then we have no hesitation in observing that various regulatory
authorities including SEIAA ought to have examined the cumulative
Environmental Impact Assessment in these cases on the water
bodies as the protection of the water bodies, the wetland and the
catchment areas of the lakes is the obligation of these authorities.”

145. The argument that huge investment has been made and even third

party interests have been created was not accepted. It was held that PP

had started construction even prior to grant of EC, hence cannot be

permitted to take advantage of its own wrong. Tribunal held, if in the

interest of environment, ecology and protection of lakes and wetlands, the

project or some part thereof is demolished, it is the requirement of law.

Since construction and allied activities were carried, contrary to law, they

would be deemed to have caused pollution not only to the environment

but more particularly lakes. It had also caused obstructions of

Rajakaluves in the area.

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146. By order dated 07.05.2015, OA No. 222/2014 was disposed of with

following directions:

“1) We decline to pass any direction or order to stop further progress

and/or demolition of the project or any part thereof at this stage.
However, constitute the following Committee to inspect the projects in
question and submit a report to the Tribunal inter alia but specifically
on the issues stated hereinafter:

a) Advisor in the Ministry of Environment and Forest dealing with

the subject of wetlands.

b) CEO of the Lake Development Authority, Karnataka State.

c) Chief Town Planner of BBMP, Bangalore.

d) Chairman of SEAC which recommended the grant of

Environmental Clearance to the projects in question.

e) Sr. Scientist (Ecology) from the Indian Institute of Sciences,

Bangalore.

f) Dr. Siddharth Kaul, former Advisor to MoEF.

g) A Senior Officer from the National Institute of Hydrology,

Roorkee.

2) Member Secretary of the Karnataka State Pollution Control Board

shall act as the Convener of the Committee and would submit the
final report to the Tribunal.

3) The Committee shall inspect not only the sites where the projects
in question are located but even other areas of Bangalore which the
Committee in its wisdom may consider appropriate, in order to
examine the interconnectivity of lakes and impact of such activities
upon the water bodies with particular reference to lakes.

4) The Committee shall submit whether the projects in question have

encroached upon or are constructed on the wetlands and
Rajakaluves. If so, are there any adverse environmental and
ecological impact of these projects on the lake, particularly Bellandur
Lake and Agara Lake, as well the Rajakaluves. The report should
specify, if any Rajakaluves have been covered by the construction
activities of respondent Nos. 9 and 10 or by any of the projects in the
area in question.

5) Committee should submit in its report, if these projects have any

adverse impacts upon the surrounding ecology and environment,

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with particular reference to lakes and wetlands. If yes, then whether
any part of the project is required to be demolished. If so, details
thereof along with reasons.

6) The Committee shall substantially notice if any of the conditions of

the Environmental Clearance order in each case of respondent Nos. 9
and 10 have been violated. If so, to what extent and suggest
remedial measures in that behalf to restore the ecology of the area.

7) The Committee would also recommend what should be the

Buffer Zone around the lake(s) and interconnecting passages
and wetlands. The Committee shall also report, whether activities
of multipurpose projects which have serious repercussions on
traffic, air pollution, environment and allied subjects should be
permitted any further or not, particularly, in wetlands and
catchment areas of water bodies.

8) Recommendations should be made with regard to the steps and

measures that should be taken for restoration of lakes, particularly
in the city of Bangalore.

9) The Committee shall also find out that whether the construction of
the projects is in accordance with the sanctioned drawings and bye-
laws in accordance with the letters dated 4 th July, 2007 and 22nd
April, 2008 respectively. Further, the Committee would also report
whether both respondent Nos. 9 and 10 have installed ETP/STP and
have taken full measures for recycling of used water for washing
and flushing, etc. in terms of letters dated 11 th October, 2013 and 3rd
January, 2013, issued by the Karnataka Industrial Area
Development Board to respondent Nos. 9 and 10 respectively.

10) In the event, the Committee is of the opinion that the adverse
impacts noticed are redeemable, then what directions need to be
issued in that behalf and the cost involved for achieving the said
conservation and restoration of lakes and water bodies.

11) Till the submission of the report by the Committee and directions
passed by the Tribunal in that regard, both respondent Nos. 9 and
10 are hereby restrained from creating any 3rd party interests or part
with the possession of the property in question or any part thereof, in
favour of any person.

12) The Committee shall submit its report to MoEF and to this
Tribunal as expeditiously as possible and in any case not later than
three months from today. During that period we restrain MoEF,
SEIAA and/or any public authority from sanctioning any
construction project on the wetlands and catchment areas of the
water bodies in the city of Bangalore.

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 13) The Committee shall report if the project proponents are
proposing to discharge their trade or domestic effluents into the lake
or any of the water bodies in and around of the area in question.

14) For the reasons stated in the judgment, respondent No. 9 is liable
and shall pay a sum of Rs. 117.35 crores, while respondent No. 10
shall pay a sum of Rs. 22.5 crores respectively being 5 per cent of
the project value, within two weeks from today. The said amount
would be paid to the KSPCB, which shall maintain a separate
account for the same and would spend this amount for
environmental and ecological restoration, restitution and other
measures to be taken to rectify the damage resulting from default
and non-compliance to law by the Project Proponent in that area,
after taking approval of the Tribunal.

15. We make it clear that the said respondents would not be entitled
to pass on the amount in terms of direction 14, on to the purchasers
because this liability accrues as a result of their own intentional
defaults, disobedience of law in force and carrying on project
activities and construction illegally and unauthorizedly.”

147. Against Tribunal‘s judgment dated 07.05.2015 in Forward

Foundation & Ors. (supra), PPs preferred Civil Appeal No. 4829 of 2014

and 4832 of 2015 before Supreme Court. They contended that they had

no opportunity to address Tribunal on merits and only on preliminary

issues arguments were advanced but judgment had been delivered on

merits. The appeals were disposed of by Supreme Court vide judgment

dated 20.05.2015, which reads as under:-

“One of the main contentions raised by the appellants in these

appeals is that though the Tribunal had heard the matter only on
preliminary issues and no arguments on merit were advanced, final
judgment decides the merits of the disputes as well and above all a
penalty of Rs.117.35 crores against original respondent no.9 (the
appellant in C.A.No.4832 of 2015) and Rs.22.5 crores against
Original respondent No.10 (the appellant in C.A.No. 4829/2015) is
imposed. On the aforesaid averment, we feel that it would be
more appropriate for the appellant to file an application
before the Tribunal with the prayer to recall the order on
merits and decide the matter afresh after hearing the counsel
for the parties, as the Tribunal knows better as to what transpired
at the time of hearing.

With the aforesaid liberty granted to the petitioners, the appeals

are disposed of. Certain preliminary issues are decided against the
appellants which are also the subject matter of challenge. However,

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 it is not necessary to deal with the same at this stage. We make it
clear that in case the said application is decided against the
appellants or if ultimately on merits, it would be open to the
appellants to challenge those orders by filing the appeal and in that
appeal all the issues which are decided in the impugned judgment
can also be raised.

The counsel for the appellants state that they would file the requisite
application within one week. Till the said application is decided by
the Tribunal, there shall be stay of the direction pertaining the
payment of aforesaid penalty.

Mr. Raj Panjwani points out that the Tribunal has allowed the
appellants to proceed with the construction only on the payment of
the aforesaid fine/penalty. We leave it to the Tribunal to pass
whatever orders it deems fit in this behalf, after hearing the parties.”

148. PPs filed MA No. 596/2015 and MA No. 603/2015. Both these

applications were disposed of by order dated 06.04.2016, which reads as

under:

“Without prejudice to the rights and contentions of the parties and

subject to just exception we would hear the parties in terms of the
order of the Hon‟ble Supreme Court of India primarily on the question
of imposition of Environmental Compensation and merits attached in
relation thereto. Parties are given liberty to address their
submissions on that behalf.”

149. The matter was finally heard by Tribunal and decided vide

judgment dated 04.05.2016. On the issues of limitation, non-disclosure

of cause of action, res judicata and pendency of Writ Petition in High

Court, (questions 1 to 4 in the judgment dated 07.05.2015), Tribunal

observed in para 12 that neither PPs have complained that they were not

heard on these questions nor they have advanced any argument on those

issues, therefore, it reiterated findings already returned on these issues

in the judgment dated 07.05.2015. The only issue remained was question

no. 5. On this aspect, Tribunal heard parties and reformulated issue into

seven questions as under:

“1. Whether Respondent No. 9 has commenced the construction of

the project before the granting of Environmental Clearance?

2. Whether Respondent No. 9 has encroached any part of the

Agara Lake and thereby caused environmental degradation?

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 3. Whether Respondent No. 9 has violated any of the conditions
of the Environmental Clearance granted?

4. Whether the Environmental Clearance granted to the project of

Respondent No. 9 is to be reviewed?

5. Whether Respondent No. 10 has commenced construction

activities before granting of Environmental Clearance?

6. Whether Respondent No. 10 has dumped muck on the

adjacent Rajakaluves and thereby reduced its width and
caused any environmental damage?

7. Whether Respondent No. 9 and 10 are liable to pay

environmental compensation and if so the quantum?”

150. All the above questions were decided vide judgment dated

04.05.2016. Questions 1 to 4 were considered together and Tribunal

findings in brief are as under:

i. The submission of respondent-9 cannot be accepted that

portion of lake was not encroached upon by it.

ii. Respondent-9 encroached 3.24 acres of the lake in Survey

No. 43 and annexed the same with the land allotted to them

as well the land obtained on private negotiations.

iii. Low-lying area was filled up and excavation work for

construction work was undertaken.

iv. Respondent-9 had commenced construction much before

17.02.2012, the date when EC was granted.

v. Respondent-9 had also tempered with the Rajakaluves.

vi. We cannot agree with the submission that no Kharab land is

involved.

vii. It is clear that respondent-9 did encroach a portion of lake

and caused environmental degradation by putting debris,

muck and excavated soil into the lake and Rajakaluves and

even filled up the creek of the lake which originally existed in

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 the property and is, therefore, guilty of the environmental

damage and degradation.

151. Coming to the last three questions no. 5, 6 and 7, Tribunal held

that PPs commenced constructions of their projects prior to grant of EC;

multiple Rajakaluves were flowing through project sites and there was

encroachment on Rajakaluves; respondent-9 dumped muck and

excavated soil on a portion of the lake and all these activities caused

environmental degradation, therefore, they are liable to pay

environmental compensation. Tribunal maintains 5% of project cost as

environmental compensation, in respect of respondent-9, but reduced it

to 3% to respondent-10. Thereafter, while disposing of original

application, Tribunal issued certain General and Specific directions as

under:

“General Conditions or directions:

1. In view of our discussion in the main Judgment, we are of the

considered view that the fixation of distance from water
bodies (lakes and Rajkalewas) suffers from the inbuilt
contradiction, legal infirmity and is without any scientific
justification. The RMP – 2015 provides 50m from middle of
the Rajkalewas as „Buffer Zone‟ in the case of primary
Rajkalewas, 25m in the case of secondary Rajkulewas and
15m in the tertiary Rajkulewas in contradiction to the 30m in
the case of lake which is certainly much bigger water body
and its utility as a water body/wetland is well known
certainly part of wet land. Thus, we direct that the
distance in the case of Respondents Nos. 9 and 10 from
Rajkulewas, Water bodies and wetlands shall be
maintained as below:-

(i) In the case of Lakes, 75m from the periphery of

water body to be maintained as green belt and
„Buffer Zone‟ for all the existing water bodies i.e.
lakes/wetlands.

(ii) 50m from the edge of the primary Rajkulewas.

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 (iii) 35m from the edges in the case of secondary
Rajkulewas.

(iv) 25m from the edges in the case of tertiary

Rajkulewas.

This buffer/green zone would be treated as no construction

zone for all intent and purposes. This is absolutely essential
for the purposes of sustainable development particularly
keeping in mind the ecology and environment of the areas in
question.

All the offending constructions raised by Respondents Nos. 9

and 10 of any kind including boundary wall shall be
demolished which falls within such areas. Wherever
necessary dredging operations are required, the same should
be carried out to restore the original capacity of the water
spread area and/or wetlands. Not only the existing
construction would be removed but also none of these
Respondents-Project Proponent would be permitted to raise
any construction in this zone.

All authorities particularly Lake Development Authority shall

carry out this operation in respect of all the water bodies/
lakes of Bangalore.

2. The capacity of the existing STPs to treat sewage is 729 MLD,

whereas another 500 MLD sewage is proposed to be treated
in 10 upcoming STPs. In this context, all the STPs operating in
the area whether Government or privately owned, should
meet the revised standards notified by CPCB/MoEF.

3. Bangalore city receives treated potable water of 1360 MLD

from river Cauvery whereas the requirement is for another
750 MLD and the entire area falls in critical zone in
terms of ground water exploitation. Information reveals
that only one million litre per month of STP treated water is
used by builders for construction purposes. For this reason,
the BWSSB issues partial NOC to various residential and
commercial projects in respect of supply of potable water. In
this context, following directions need to be issued:

i. At the time of grant of EC, the water requirement

for the construction phase and operation phase
should be considered separately. Due considerations
should also be given for identification of source of supply
of water and this should be a pre-requisite for grant
of EC.

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 ii. All the project proponents should necessarily use only
treated sewage water for construction purpose and this
should be reflected in EC as a condition for
construction phase.

iii. Wherever the quality of treated sewage water does not

conform to the quality needed for construction, necessary
upgradation in STP should be undertaken immediately.

Specific Conditions/Directions for Respondent 9:.

In addition to the above directions which should be equally part

of EC condition in respect of respondents nos. 9 & 10,
following specific conditions shall apply to respondent no. 9:

i. Reclaimed area of the lake to the extent of 3 acres 10

guntas in survey no. 43 should be restored to its original
condition at the cost of project proponent. The possession
of this area should be restored by Respondent No. 9 to
the concerned Authorities immediately. In addition, a
„Buffer Zone‟ of 75 m should be provided between the
lake and the project area and this should be maintained
as green area.

ii. In the remaining area, where primary Rajkalewa is

abutting the project area, 50 m „Buffer Zone‟ on the side
of the project area from the edge of the rajkalewa should
be maintained as green belt.

iii. Several irrigation canals or tertiary rajkalewas taking off

from the Agara tank were passing through the area of
respondent no. 9, and serve the dual purpose of
irrigating paddy fields and disposal of surface run off
(storm water drains) during rainy season. However, on
account of the activities of the project, these drains have
been totally obliterated. For the purpose of proper
disposal of storm runoff from the entire area falling
between the Agara lake and the Belandur Lake,
respondent no. 9 must provide required number of storm
water drains based on proper hydrological study. These
storm drains should have a „Buffer Zone‟ of 15 m on
either bank maintained as green belt.

iv. The cumulative quantity of earth excavated for the

construction of project is around 4 lakhs cubic meters in
the depth range of 0 to 9 meters. This has created huge
hillock like structure obstructing the natural flow pattern
of surface runoff from Agara Lake side to Balendur Lake

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 side or primary Rajkalewas. For this purpose, during
construction phase garland drain should be constructed
around the existing dumping site for safe disposal of
runoff to the Rajkalewas. For the disposal of excavated
material, a proper muck disposal plan duly approved by
SIEAA shall be prepared. In any case the plan should
ensure that no muck/sediment flows into Rajkalewas
and/or Belandur Lake.

v. The Kharab land identified by Revenue Dept.

admeasuring 1 acre 2 guntas should be
demarcated and maintained separately as green
belt.

vi. The entire green belt created under the directions

of this Tribunal should not to be considered as
part of green belt of the project as part of EC
condition and will be over and above the green belt
as indicated in the EC.

vii. In view of the heavy traffic load in the adjoining

Sarjapur road, a proper study on the basis of traffic
density, foot falls expected, etc., a proper plan needs to
be prepared and the concept of service road exclusively
for the project needs to be worked out and additional
parking space created within the project area and
incorporated as a part of the overall project layout,
within a period of 3 months.

10. Though, at the time of hearing prior to passing the Judgment,

we had heard the parties on all aspects but still we have
provided re-hearing to the parties on all issues with emphasis
on imposition of environmental compensation including the
quantum. Upon hearing, we are of the considered view that
environmental compensation imposed upon Respondent No. 9
calls for no variation and the Respondent No. 9 should be
called upon to pay the said amount of Rs. 117.35 Crores
determined under the Judgment prior to commencement of
any project activity at the site. Respondent No. 10 has not
commenced any actual construction activity but has carried
out various preparatory steps including excavation and
deposition of huge earth by creating a hillock at the premises
in question and a site office.

Thus, considering cumulative effect on environment and

ecology due to various breaches in that behalf by Respondent
No. 10 and the fact that the remedial measures can more
effectively be taken by the Respondent No. 10, we reduce

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 environmental compensation payable by Respondent No. 10
to Rs. 73 13.5 crores (3% of the stated project cost instead of
5% as imposed in the original judgment).

General Directions:

1. We direct SEIAA, Karnataka to issue amended order granting

Environmental Clearance within four weeks from today
incorporating all the conditions stated in this judgement and
such other conditions as it may deem appropriate in light of
this judgment and Inspection Note of the Expert Members.
The Project Proponents would be permitted to commence
activity only after issuance of amended Environmental
Clearance order.

2. SEIAA Karnataka and MoEF shall ensure regular supervision

and monitoring of the project and during the construction and
even upon completion to ensure that activity is carried out
strictly in accordance with the conditions of the order granting
Environmental Clearance, this Judgment, Notification of 2006
and other laws in force.

3. The distances in respect of „Buffer Zone‟ specified in

this judgment shall be made applicable to all the
projects and all the Authorities concerned are directed
to incorporate such conditions in the projects to whom
Environmental Clearance and other permissions are
now granted not only around Belandur Lake,
Rajkulewas, Agara Lake, but also all other
Lakes/wetlands in the city of Bengluru.

4. We hereby direct the State of Karnataka to submit a

proposal to the MoEF for demarcating wetlands in
terms of Wetland Rules 2010 as revised from time to
time. Such proposal shall be submitted by the State within
four weeks from today and the MoEF shall consider the same
in accordance with law and grant its approval or otherwise
within four weeks thereafter. After such approval is granted
by MoEF, the State would issue notification notifying such
areas immediately thereafter in accordance with Rules and
law.

5. Both the Respondents Nos. 9 and 10 shall ensure that debris

or any construction material that has been dumped into the
Rajkulewas, or on their Banks and on the „Buffer Zone‟ of
wetlands should be removed within four weeks from today.
In the event they fail to do so, the same shall be removed by
the Lake Development Authority along with the State

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 Administration and recover charges thereof from the said
Respondents.

6. There is a serious discrepancy even in regard to the

measurement of land as far as Respondent no. 9 is
concerned. Admittedly the Respondent has been allotted and
is in possession of land admeasuring 63.94 acres, though
Environmental Clearance has been granted for 2,92,636.03
Sq. Meters which is equivalent to 72.22 acres. For this reason
alone, Environmental Clearance cannot be given effect to.
While issuing the amended Environmental Clearance, SEIAA
Karnataka shall take into consideration all these aspects
and, if necessary, would require Respondent no. 9 to submit
a fresh layout plant and the entire project may be revised in
accordance with law.

7. Both the Respondents (Project Proponents) shall submit an

appropriate plan in view of the conditions imposed in this
judgment and the amended Environmental Clearance that
would be issued.

8. The amount of environmental compensation will be deposited

prior to issuance of amended Environmental Clearance.”

152. Several Civil Appeals were filed before Supreme Court and decided

vide judgment dated 05.03.2019, i.e., Mantri Techzone Private Limited

v. Forward Foundation & Ors., (2019) 18 SCC 494. Civil Appeals No.

5016 of 2016 and 8002-8003 of 2016 were filed by respondents-9 & 10,

i.e., PPs in that matter and Civil Appeals No. 4923-24 of 2017 were filed

by State of Karnataka. PPs, i.e., respondents-9 and 10 challenged

Tribunal‘s both the judgments and orders dated 07.05.2015 and

04.05.2016, but State of Karnataka challenged only part of the judgment

dated 04.05.2016, contained in direction no. 1 in General Conditions

regarding length of ‗Buffer Zone‘ of lakes and Rajakaluves. Supreme

Court, firstly, considered scope of appeal under Section 22 and observed

that appeal is permissible on any one or more grounds specified in

Section 100 of Code of Civil Procedure (hereinafter referred to as ―CPC‖),

i.e., if there has arisen a ―substantial question of law‖ which means that

133
an appellant cannot seek to argue entire case for warranting wholesale

re-appreciation of evidence. There cannot be fresh appreciation or re-

appreciation of facts in an appeal under Section 22 of NGT Act, 2010.

Considering question of maintainability of application before Tribunal,

Supreme Court held that Tribunal is a specialized judicial body for

effective and expeditious disposal of cases relating to environmental

protection, conservation of forests and other natural resources including

enforcement of any legal right relating to environment. Tribunal has

special jurisdiction for enforcement of environmental rights. Referring to

the jurisdiction of Tribunal under Sections 14, 15 and 16 of NGT Act,

2010, it was held that Section 14 provides jurisdiction over all civil cases

where a substantial question relating to environment is involved but such

question should arise out of implementation of the enactments specified

in Schedule I; section 15(1)(a) confers power upon Tribunal to provide

relief and compensation to the victims of pollution and other

environmental damage arising under the enactments specified in

Schedule I; and under Section 15(1)(b) and 15(1)(c) , Tribunal can provide

for restitution of property damaged and restitution of environment for

such area or areas as Tribunal may think fit. Supreme Court pointed out

that Section 15(1)(b) and 15(1)(c) cannot be narrowed down to bring at

per with Section 15(1)(a) since, sub-sections (1)(b) and (1)(c) have not

been made relatable to Schedule I enactments of NGT Act, 2010. Thus, a

wide range of power has been conferred upon Tribunal with respect to

restoration of environment; Court also observed that Section 15(1)(c) read

with Section 20 of NGT Act, 2010 is an entire island of power and

jurisdiction, Principles of sustainable development, Precautionary

Principle and Polluter Pays, which were propounded vide multiple judicial

pronouncements and embedded as a bedrock of environmental

134
jurisprudence under NGT Act, 2010. Wherever and whenever

environment and ecology are being compromised and jeopardized,

Tribunal can apply Section 20 for taking restorative measures in the

interest of environment. Supreme Court declined to read provisions of

NGT Act, 2010 so as to narrow down jurisdiction of Tribunal in the

matter of environmental protection. Court said that an interpretation

which would be in favour of conferring jurisdiction shall be followed. It

also refers to Section 33 of NGT Act, 2010 and observed that it gives

overriding powers to Tribunal over anything inconsistent contained in

KTCP Act, 1961, KMC Act, 1976 and RMP-2015. Court further said:

“A Central legislation enacted under Entry 13 of Schedule VII List I of

the Constitution of India will have the overriding effect over State
Legislations. The corollary is that the Tribunal while providing for
restoration of environment in an area, can specify „Buffer Zone‟s
around specific lakes and water bodies in contradiction with zoning
regulations under these statutes or RMP”.

153. Considering question of limitation, Supreme Court found that

application filed before Tribunal was not under Section 14 but covered by

Section 15 of NGT Act, 2010. In fact, no provision was mentioned in the

application. Observing that non-mention of or erroneous mention of the

provision of law would not be of any relevance if Court had requisite

jurisdiction to pass order and being a mere regularity, it would not vitiate

judicial order of Tribunal, Court held that the application was well in time

since for Section 15, five years from the date on which cause for such

compensation or relief arose, is the limitation. Findings of Tribunal that

construction had commenced before grant of EC based on the excavation

of soil and dumping of debries, etc. was seriously challenged by PP but

rejecting the same, Court noticed, findings recorded in para 72 of

judgment dated 04.05.2016 are based on documents that were available

on record and also on the pleadings of parties. The issue relating to

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principal of res judicata or constructive res judicata raised by PP on the

ground that writ petition was filed in High Court of Karnataka was also

negated and otherwise findings of Tribunal were confirmed. The appeals

of PPs were, accordingly, dismissed.

154. State of Karnataka‘s appeal was confined to direction/condition no.

1. State‘s appeal was allowed setting aside direction/condition no. 1

except direction issued against respondents-9 and 10. Operative part of

Supreme Court‘s judgment in Mantri Techzone Private Limited v.

Forward Foundation & Ors. (supra), read as under:-

“62. In the light of the above discussion, we pass the following

order:

62.1 Civil Appeal No. 5016 of 2016 and Civil Appeal Nos. 8002-
8003 of 2016 filed by the appellants/respondent nos. 9 and 10 are
hereby dismissed. The impugned judgment and order in are
concerned is sustained.

62.2 All the other appeals are hereby allowed and the
direction/condition No. (1) in the order dated 4.5.2016 is
hereby set aside except the direction issued against
respondent Nos. 9 and 10.”
(Emphasis Added)

OA-1-Final Order:

155. Before coming to appeal and OA-2, we may mention that in OA-1,

PP or its representative have not raised any issue, may be for the reason

that the Report submitted by First Joint Committee has attained finality

in respect of Survey nos. 71/1, 71/2, 72/2, 73 and 74/5B and Tribunal‘s

directions issued vide order dated 09.05.2019 for taking action against

PP have also attained finality after dismissal of Civil Appeal No.

5195/2019, Ramesh Kumar vs. Mahadevpura Parisara

Samrakshane Mattu Abhivrudhi Samiti (MAPSAS) & Ors. by Supreme

Court, filed by PP-Shri Ramesh Kumar against Tribunal‘s order dated

09.05.2019. Before us, nothing has been placed that project of PP-Shri

136
Ramesh Kumar was in any manner, valid or legal. No argument on this

aspect has been advanced. Hence, in view of order already passed on

09.05.2019 based on the report submitted by First Joint Committee, we

allow Original Application, i.e., OA No. 281/2019. Order for taking

necessary action against PP, Ramesh Kumar as well as demolition of

constructions illegally raised on the disputed site, are maintained and

reiterated. The respondents competent authorities shall proceed in

accordance with law to enforce environmental laws by initiating

prosecution, demolishing the structures, illegally raised, if not, already

demolished, restore land to its original position, make assessment of cost

of restoration and damage to environment, assess environmental

compensation against PP-Ramesh Kumar and realize the same in

accordance with law, if not already done, expeditiously and in any case

within 3 months from the date of this judgment.

Appeal & OA-2–Discussion on merit:

156. Now, we come to Appeal and OA-2 preferred by H.P. Rajanna

relating to M/s. Wonder Projects Development Private Limited and its

holding company M/s. Godrej Properties Limited.

157. First question comes up for consideration is,

―whether PP submitted incorrect and/or incomplete and/or false

information(s) to obtain EC dated 10.01.2018, and, if so, its effect on

other permissions/consents/clearances issued by other statutory

authorities and/or the project itself‖.

158. To answer, it would be appropriate to examine various applications

and orders passed by different authorities in respect of project in

question.

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Documents relating to change of land use:

159. The land of disputed project was part of three Survey numbers,

described as under:

Sl. Survey no. Area

No.
i 61/2 03 acres 05 guntas
ii 62 03 acres 02 guntas
iii 63/2 06 acres 11 guntas
Total 12 acres 18 guntas

160. The aforesaid land is situated in Kasavanahalli Village, Varthur

Hobli, Bengaluru East Taluk. The land was agriculture under Revenue

records. Vide order dated 31.03.2006 passed by Deputy Commissioner,

Bengalore, Urban District, it was converted to non-agriculture. It was

declared as industry (Hi-Tech) in RMP-2015. PP vide application dated

25.11.2016 and 06.12.2016 requested for change of land use under

Section 14(a) of KTCP Act, 1961 from Industrial (High-Tech) to

Residential use. Matter was examined by BDA in its meeting dated

17.08.2017. It decided to submit proposal for conversion to Karnataka

Government through BBMP. The permission was granted by Karnataka

Government vide order dated 24.10.2017, relevant extract is as under:-

―In the background of the points explained in the proposal, u/s

14(a) of Karnataka Town and Country Planning Act, 1961,
Government has given approval for the conversion of 03 Acre 5
Guntaas in 61/2, 03 Acre 02 Guntaas in 62, 06 Ac 11 Guntaas in
63/2, Total 12 Acre 18 Guntaas, Kasavanahalli Village, Varthur
Hobli, BANGALORE EAST Taluq from industrial use to
residential use, subject to the following condition:

1. If there is any proposal in the Master Plan for

extension/widening of the road, or up-gradation of State
High way or National Highway, necessary land to be
preserved at the time of approval of Plan/lay out, necessary
steps to be taken for rain water harvesting.

2. If there are any Civil disputes, party to be bound by Court

138
 order/Judgment.

3. Land Conversion Order automatically gets cancelled if false

information is submitted, or if any information is found
wrong/forged.

4. Other conditions that may be imposed by BMRDA.

5. ‗Buffer Zone‘/land to be preserved as per rules for

Tank/Canal H.T. Line/sub-station/Feeder, rail mass, transit
line, Railway Track, passing through the said land.

6. Original records to be examined/verified by BMRDA at the

time of giving approval.

7. Consent letter to be obtained from State Pollution

Control Board, before using the land for proposed
purpose.

8. Change in land use is not a record for claiming right over

property, if any case is pending before any Court U/s 136 (3)
Land Revenue Act, 1964 or land reforms at, CONVERSION
OF LAND/Usage is subject to final orders/Judgment, in this
regard Applicant shall submit a Declaration that the he is
bound by final Judgment, that he will not claim fees paid for
change of land and shall comply with it.

9. Authority has given administrative approval/sanction for the

case recommended for change of land use/conversion. In
such cases, it is the responsibility of the Authority to
minutely examine technical points and if there are any lapses
in this change of land use, AUTHORITY will be solely
responsible for it.

10. Zonal Regulation‘s conditions to be strictly followed.

11. Order passed by the NATIONAL GREEN TRIBUNAL in

O.A.s No. 222/2014 on 04.05.2016, prescribing ‗Buffer
Zone‘ around tanks/canals/rajakuluve has to be kept in
mind at the time of sanction of building plan.

12. Fees to be obtained/remitted u/s 18 of KARNATAKA TOWN

and COUNTRY PLANNING Act, 1961.

13. Said change of land use/conversion to be adopted in

full/comprehensive manner at the time of revision of
MASTER PLAN.

14. It is mandatory to obtain N.O.C. from

departments/authorities, concerned before taking up any

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 development works in the land under reference.

15. Any other conditions that the Authority may impose.‖

161. The above order dated 24.10.2017 was issued by Under Secretary

to Government, Department of Urban Development, State of Karnataka.

Consequential letter of Confirmation for change of land use was issued by

DA on 08.12.2017.

Documents relating to grant of EC:

162. PP filed application dated 14.10.2017 in Form 1 and 1A before

SEIAA, Karnataka for grant of EC as per the procedure laid down in EIA

2006. This application was submitted even before conversion was

allowed vide order dated 24.10.2017.

163. Interestingly, before order could be passed by Government of

Karnataka permitting change of land use, PP filed application dated

14.10.2017 in Form 1 and 1A, accompanied by Conceptual Plan as

required in EIA 2006, since, PP claimed that built up area is less than

150000 square meters.

164. From perusal of EC dated 10.01.2018, we find that SEAC sought

some additional clarifications. Thereafter SEAC, Karnataka, in its

meeting dated 25.11.2017 recommended issue of EC to PP (M/s. Wonder

Projects Development Private Limited), only on the basis of facts stated in

the application i.e. Form 1, IA and conceptual plan. It does not appear

that there was any site inspection either by the official(s) or

representative(s) of SEAC, Karnataka. Similarly on the basis of aforesaid

documents and recommendations of SEAC, SEIAA, Karnataka in its

meeting dated 20.12.2017 decided to accord EC and consequently, EC

dated 10.01.2018 was issued. These authorities did not bother to enquire

140
about difference in information given in DP submitted for sanction to

BDA vis-a-vis application for EC in respect of lake, drains and built up

area as well units (flats).

165. Since for issue of EC, statutory provisions are contained in EIA

2006, as amended from time to time, we find it appropriate to have a bird

eye view of EIA 2006.

EC (Environment Clearance), i.e., EIA 1994, 2006 and relevant

amendments:

166. Section 3(1) of EP Act, 1986 read with Section 2(v), confer power

upon Central Government to take all such measures as it deems

necessary or expedient for the purpose of protecting and improving

quality of environment and preventing, controlling and abating

environmental pollution. Sub-section (2) of Section (3) refers to certain

specific subject matters in addition to general power conferred by sub-

section 1. Central Government has issued various orders and directions

in exercise of above powers under section 3. In M.C. Mehta v. Union of

India, (2002) 4 SCC 356, it has been held that such directions are

binding on all persons concerned.

167. EP Rules, 1986 have been framed in exercise of power under

Sections 6 and 25 of EP Act, 1986. Rule 4 thereof, states that any

direction issued under Section 5 shall be in writing. Rule 5 contemplates

certain factors to be taken into consideration by Central Government

while exercising power for prohibition/restriction on the location of

industries and/or carrying on processes and operations in different areas

and these factors are detailed in Clause (i) to (x) of Section 5(1). Procedure

for issuing such directions imposing prohibition, restriction etc. is given

in sub-section (2) of Section 5.

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168. Exercising powers under Section 3(1)(2)(v) of EP Act, 1986, read

with Rule 5(3)(d) of EP Rules, 1986, MoEF issued notification dated

27.01.1994 on Environmental Impact Assessment of Development

Projects (hereinafter referred to as ―EIA 1994‖). It provided that expansion

and modernization of any activity (if pollution load is to exceed the

existing one) or a new project, listed in Schedule I of the said Notification,

shall not be undertaken in any part of India unless it has been accorded

EC by Central Government in accordance with the procedure specified in

the said Notification.

169. In the light of experience and to make more comprehensive

provisions, a draft notification of EIA was published in Gazette of India,

dated 15.09.2005 inviting objections and suggestions. After considering

objections and suggestions received, final notification was issued on

14.09.2006, i.e., EIA 2006, in supersession of earlier notification dated

27.01.1994, i.e., EIA 1994. It required a ‗Prior EC‘ from Central

Government or State Level Environment Impact Assessment Authority

(i.e. SEIAA), constituted by Central Government under sub-Section (3) of

Section 3 of EP Act, 1986. All new projects or activities, expansion and

modernization of existing projects or activities listed in the Schedule to

the aforesaid notification would require ‗Prior EC‘.

170. Para 2 of EIA 2006 states that following projects or activities shall

require ‗Prior EC‘ from concerned regulatory authority, which shall be

referred as MoEF for matters falling under Category ‗A‘ in the Schedule

and at State level, SEIAA, for matters falling under Category ‗B‘ in the

Schedule, before any construction work, or preparation of land by project

management, except for securing land, is started on the project or

activity.

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171. The projects are categorized as ‗A‘ or ‗B‘, under para 4. For ‗A‘

Category project, MoEF is the competent authority to grant prior approval

while for ‗B‘ category projects etc., it is SEIAA. Para 4 (relevant extract),

reads as under:-

―(i) All projects and activities are broadly categorized in to two

categories-Category A and Category B, based on the spatial extent
of potential impacts and potential impacts on human health and
natural and manmade resources.

(ii) All projects or activities included as Category ‗A‘ in the

Schedule, including expansion and modernization of existing
projects or activities and change in product mix, shall require
prior environmental clearance from the Central Government in
the Ministry of Environment and Forests (MoEF) on the
recommendations of an Expert Appraisal Committee (EAC) to be
constituted by the Central Government for the purposes of this
notification;

(iii) All projects or activities included as Category ‗B‘ in the

Schedule, including expansion and modernization of existing
projects or activities as specified in sub paragraph (ii) of paragraph
2, or change in product mix as specified in sub paragraph (iii) of
paragraph 2, but excluding those which fulfill the General
Conditions (GC) stipulated in the Schedule, will require prior
environmental clearance from the State/Union territory
Environment Impact Assessment Authority (SEIAA). The SEIAA
shall base its decision on the recommendations of a State or Union
territory level Expert Appraisal Committee (SEAC) as to be
constituted for in this notification. In the absence of a duly
constituted SEIAA or SEAC, a Category ‗B‘ project shall be
considered at Central Level as a Category ‗A‘ project;‖

172. Procedure of examination of project bring in Expert Appraisal

Committee (i.e., EAC) in case of approval by MoEF&CC and State Expert

Appraisal Committee (i.e., SEAC), if approval is by SEIAA. The process of

examination comprises of three steps, i.e., screening, scoping and

appraisal.

173. Para 6 talks of application for ‗Prior EC‘ and reads as under:-

―6. Application for Prior Environmental Clearance (EC):-

143
 An application seeking prior environmental clearance in
all cases shall be made in the prescribed Form 1 annexed
herewith and Supplementary Form 1A, if applicable, as given in
Appendix II, after the identification of prospective site(s) for the
project and/or activities to which the application relates, before
commencing any construction activity, or preparation of land,
at the site by the applicant. The applicant shall furnish, along
with the application, a copy of the pre-feasibility project report
except that, in case of construction projects or activities (item 8
of the Schedule) in addition to Form 1 and the Supplementary
Form 1A, a copy of the conceptual plan shall be provided,
instead of the pre-feasibility report.‖

174. Thereafter, procedural stages in regard to ‗Prior EC‘ for new

projects are given in para 7. Para 8 confers power upon the concerned

Competent Authority to grant or reject application for ‗Prior EC‘. There is

time prescribed within which decision is required to be taken by

Competent Authority for rejection of want of EC failing which clause (iii)

of para 8 provides that EC shall be deemed to have been granted or

denied in terms of final recommendations of Expert Appraisal Committee,

i.e., EAC or SEAC, as the case may be. Clause (v) of para 8 states that

clearance from other bodies or authorities shall not be required prior to

receipt of applications for ‗Prior EC‘ of projects or activities, etc., unless

any of these is sequentially dependent on such clearance either due to a

requirement of law, or for necessary technical reasons. Then para 8

clause (vi) of EIA 2006 consider the matters where incorrect

information(s) have been given or there is a case of concealment of facts

etc. and says:

―(vi) Deliberate concealment and/or submission of false or

misleading information or data which is material to
screening or scoping or appraisal or decision on the
application shall make the application liable for
rejection, and cancellation of prior environmental
clearance granted on that basis. Rejection of an application
or cancellation of a prior environmental clearance already
granted, on such ground, shall be decided by the regulatory
authority, after giving a personal hearing to the applicant,
and following the principles of natural justice.‖

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175. In the Schedule, building and construction project is at Item 8. It

shows that ‗Prior EC‘ would be required for construction projects

involving more than 20000 square meters of built-up area. The projects

involving built-up area of more than 50000 square meters but less than

150000 square meters are in the Category ‗B1‘. Projects in Category ‗B‘,

i.e., ‗B1‘ or ‗B2‘ involving construction activities are to be granted ‗Prior

EC‘ by SEIAA while projects in Category ‗A‘, i.e., where built-up area is

more than 150000 square meters, Competent Authority to grant ‗Prior

EC‘ is MoEF&CC.

176. We are not referring to all the amendments made in EIA 2006

which are 58 in number up to 17.02.2020, but would refer some

amendments relevant for the purpose of present case.

177. Vide EIA Notification dated 04.04.2011, published in Government

of India‘s Gazette Extraordinary dated 06.04.2011, in Item 8(a), column

(5) was substituted as under:-

―The built up area for the purpose of this Notification is defined as

―the built up or covered area on all the floors put together including
basement(s) and other service areas, which are proposed in the
building/construction projects.‖

178. Vide Notification dated 25.01.2012, published in Government of

India‘s Gazette Extraordinary dated 25.01.2012, in appendix 5, para 3

was substituted as under:-

―3. Where a public consultation is not mandatory, the appraisal

shall be made on the basis of prescribed application in Form-I and
environment impact assessment report, in the case of all projects
and activities (other than item 8 of the Schedule), except in case
where the said project and activity falls under category ‗B2‘, and in
the case of items 8(a) and 8(b) of the Schedule, considering their
unique project cycle, the Expert Appraisal Committee or State Level
Expert Appraisal Committee concerned shall appraise projects or
activities on the basis of Form-1, Form 1A, conceptual plan
and the environment impact assessment report [required only
for projects listed 8(b)] and make recommendations on the project

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 regarding grant of environment clearance or otherwise and also
stipulate the conditions for environmental clearance.‖

179. Notification dated 02.12.2014, published in Government of India‘s

Gazette Extraordinary of the same date, amended Item 8 in the Schedule

and it was substituted as under:-

― (1) (2) (3) (4) (5)

―8 Building or Construction projects or Area
Development projects and Townships
8(a) Building and >20000 sq. mtrs The term ―built up area‖ for
Construction and <1,50,000 the purpose of this
projects sq. mtrs of built notification is the built up or
up area covered area on all floors
put together including its
basement and other service
areas, which are proposed in
the building or construction
projects.

Note 1.- The projects or

activities shall not include
industrial shed, school,
college, hostel for educational
institution, but such
buildings shall ensure
sustainable environmental
management, solid and
liquid waste management,
rain -water harvesting and
may use recycled materials
such as flyash bricks.

Note 2.- "General Conditions"

shall not apply
8 Townships Covering an area A project of Township and
and Area of >50 ha and or Area Development Projects
Development built up area> covered under this item shall
Projects 1,50,000 sq. require an Environment
mrts Assessment report and be
appraised as Category ‗B1‘
Project.

Note.-―General Conditions‖
shall not apply.
‖

180. By Notification dated 15.01.2016 published in Government of

India‘s Gazette Extraordinary of the same date, para 6 relating to

application for ‗Prior EC‘ was substituted as under:

―6. Application for Prior Environmental Clearance (EC):-

An application seeking prior environmental clearance in all cases

shall be made by the project proponent in the prescribed Form

146
 1 annexed herewith and Supplementary Form 1A, if applicable,
as given in Appendix II after the identification of prospective
site(s) for the project and/or activities to which the application
relates; and in Form 1M for mining of minor minerals up to five
hectare under Category ‗B2‘ projects, as given in Appendix VIII,
before commencing any construction activity, or preparation of
land, or mining at the site by the project proponent. The project
proponent shall furnish along with the application, a copy of the
pre-feasibility project report, in addition to Form 1, Form 1A, and
Form 1M; and in case of construction projects or activities (Item
8 of the Schedule), a copy of the conceptual plan shall be
provided instead of pre-feasibility report.‖

181. By Notification dated 09.12.2016, published in Government of

India‘s Gazette Extraordinary of the same date, demand of Ease of Doing

Responsible Business and streamlining permissions for buildings and

construction sector, important for providing houses, was considered

objectively. Thereafter para 14 was inserted in EIA Notification 2006,

which reads as under:

―14. Integration of environmental condition in building bye-

laws.-

(1) The integrated environmental conditions with the

building permission being granted by the local
authorities and the construction of buildings as per
the size shall adhere to the objectives and
monitorable environmental conditions as given at
Appendix-XIV.

(2) The States adopting the objectives and monitorable

environmental conditions referred to in subparagraph
(1), in the building bye-laws and relevant State laws
and incorporating these conditions in the approvals
given for building construction making it legally
enforceable shall not require a separate environmental
clearance from the Ministry of Environment, Forest and
Climate Change for individual buildings.

(3) The States may forward the proposed changes in

their bye-laws and rules to the Ministry of
Environment, Forest and Climate Change, who in
turn will examine the said draft bye-laws and rules
and convey the concurrence to the State
Governments.

(4) When the State Governments notifies the bye-laws and

rules concurred by the Ministry of Environment, Forest

147
 and Climate Change, the Central Government may
issue an order stating that no separate environmental
clearance is required for buildings to be constructed in
the States or local authority areas.

(5) The local authorities like Development Authorities,

Municipal Corporations, may certify the compliance of
the environmental conditions prior to issuance of
Completion Certificate, as applicable as per the
requirements stipulated for such buildings based on
the recommendation of the Environmental Cell
constituted in the local authority.

(6) The State Governments where bye-laws or rules are

not framed may continue to follow the existing
procedure of appraisal for individual projects and
grant of Environmental Clearance for buildings and
constructions as per the provisions laid down in
this notification.

(7) For the purpose of certification regarding incorporation

of environmental conditions in buildings, the Ministry
of Environment, Forest and Climate Change may
empanel through competent agencies, the Qualified
Building Environment Auditors (QBEAs) to assess and
certify the building projects, as per the requirements of
this notification and the procedure for accreditation of
Qualified Building Auditors and their role as given at
Appendix-XV.

(8) In order to implement the integration of

environmental condition in building bye-laws, the
State Governments or Local Authorities may
constitute the Environment Cell (herein after called
as Cell), for compliance and monitoring and to
ensure environmental planning within their
jurisdiction.

(9) The Cell shall monitor the implementation of the bye-

laws and rules framed for Integration of environmental
conditions for construction of building and the Cell
may also allow the third part auditing process for
oversight, if any.

(10) The Cell shall function under the administrative control

of the Local Authorities.

(11) The composition and functions of the Cell are given at

Appendix-XVI.

(12) The Local Authorities while integrating the

environmental concerns in the building bye-laws, as
per their size of the project, shall follow the
procedure, as given below:

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 BUILDINGS CATEGORY ‗1‘ (5,000 to < 20,000 Square meters)

A Self declaration Form to comply with the environmental

conditions (Appendix XIV) along with Form 1A and certification by
the Qualified Building Environment Auditor to be submitted online
by the project proponent besides application for building
permission to the local authority along with the specified fee in
separate accounts. Thereafter, the local authority may issue the
building permission incorporating the environmental conditions in
it and allow the project to start based on the self declaration and
certification along with the application. After completion of the
construction of the building, the project proponent may update
Form 1A online based on audit done by the Qualified Building
Environment Auditor and shall furnish the revised compliance
undertaking to the local authority. Any non-compliance issues in
buildings less than 20,000 square meters shall be dealt at the level
of local body and the State through existing mechanism.

OTHER BUILDINGS CATEGORIES (≥ 20,000 Square meters)

The project proponent may submit online application in

Form1A alongwith specified fee for environmental appraisal and
additional fee for building permission. The fee for environmental
appraisal will be deposited in a separate account. The
Environment Cell will process the application and present it in
the meeting of the Committee headed by the authority
competent to give building permission in that local authority.
The Committee will appraise the project and stipulate the
environmental conditions to be integrated in the building
permission. After recommendations of the Committee, the building
permission and environmental clearance will be issued in an
integrated format by the local authority.

The project proponent shall submit Performance Data and

Certificate of Continued Compliance of the project for the
environmental conditions parameters applicable after completion of
construction from Qualified Building Environment Auditors every
five years to the Environment Cell with special focus on the
following parameters:-

(a) Energy Use (including all energy sources).

(b) Energy generated on site from onsite Renewable energy

sources.

(c) Water use and waste water generated, treated and

reused on site.

(d) Waste Segregated and Treated on site.

(e) Tree plantation and maintenance.

After completion of the project, the Cell shall randomly check the
projects compliance status including the five years audit report.
The State Governments may enact the suitable law for imposing

149
 penalties for non-compliances of the environmental conditions and
parameters. The Cell shall recommend financial penalty, as
applicable under relevant State laws for non-compliance of
conditions or parameters to the local authority. On the basis of the
recommendation of the Cell, the local authority may impose the
penalty under relevant State laws. The cases of false declaration or
certification shall be reported to the accreditation body and to the
local body for blacklisting of Qualified Building Environment
Auditors and financial penalty on the owner and Qualified Building
Environment Auditors.

No Consent to Establish and Operate under the Water

(Prevention and Control of Pollution) Act, 1974 and the Air
(Prevention and Control of Pollution) Act, 1981 will be
required from the State Pollution Control Boards for
residential buildings up to 1,50,000 square meters.”

182. In the Schedule, Item 8, again there was substitution for sub items

8(a) and (b) as under:-

― (1) (2) (3) (4) (5)

―8 Building or Construction projects or Area
Development projects and Townships
8(a) Building >20,000 sq. The term ―built up
and mtrs and area‖ for the purpose of
Constructio <1,50,000 sq. this notification is the
n projects mtrs of built up built up or covered
area area on all floors put
together including its
basement and other
service areas, which
are proposed in the
building or
construction projects.

Note 1.- The projects

or activities shall not
include industrial
shed, school, college,
hostel for educational
institution, but such
buildings shall ensure
sustainable
environmental
management, solid
and liquid and
implement
environmental
conditions given at
Appendix-XIV.

Note 2.- "General

Conditions" shall not
apply

Note3.- The
exemptions granted at
Note 1 will be available
only for industrial shed

150
 after integration of
environmental norms
with building
permissions at the level
of local authority.
8(b) Townships >3,00,000 >1,50,000 sq. Note.- ―General
and Area sq. mtrs mrts and Conditions‖ shall not
Developmen for built <3,00,000 sq. apply.
t Projects up area or mtrs built up
Covering area or
an area > covering an
150 ha area >50 ha
and <150 ‖

183. With reference to para 14(7), inserted vide Notification dated

09.12.2016, Appendix-XV comes into picture and therein the relevant

provisions pertaining to the construction of 50000 square meters to

150000 square meters specific provisions were made in respect of

Topography and Natural Drainage, Water Conservation-Rain Water

Harvesting and Ground Water Recharge, Solid Waste Management,

Sewage Treatment Plant, Energy, Air Quality and Noise, Green Cover, Top

Soil Preservation and reuse, Transport, Environment Management Plan.

We are concerned with the matter relating to Topography and Natural

Drainage and the same read as under:

― MEDIUM S.N. ENVIRONMENTAL CONDITIONS

Topography 1 The natural drain system should be
and Natural maintained for ensuring unrestricted
Drainage flow of water. No construction shall be
allowed to obstruct the natural
drainage through the site. No
construction is allowed on wetland and
water bodies. Check dams, bio-swales,
landscape, and other sustainable urban
drainage systems (SUDS) are allowed for
maintaining the drainage pattern and to
harvest rain water.

Buildings shall be designed to follow

the natural topography as much as
possible. Minimum cutting and filling
should be done. ‖

184. Appendix-XVI read with para 14(11) talks of setting up of an

Environmental Cell which must consist of at least three dedicated

151
Experts in the fields of Waste management (solid and liquid); Water

conservation and management; Resource efficiency including Building

materials; Energy Efficiency and renewable energy; Environmental

planning including air quality management; and Transport planning and

management. It also says that Cell shall induct at least two outside

Experts as per the requirements and background of dedicated Experts.

The function of Cell area is also mentioned therein.

185. Subsequent Notifications up to the period 14.10.2017, when PP in

the present case submitted application for grant of ‗Prior EC‘ are not

relevant hence are not being referred.

186. Provisions of EIA Notification, 2006 and the process thereunder

have been considered in detail, recently, by Supreme Court in Hanuman

Laxman Aroskar vs. Union of India, (supra). It was an appeal taken to

Supreme Court, from a judgment/order dated 21.08.2018 passed by this

Tribunal in Appeal No. 5/2018 (earlier Appeal No. 61/2015/WZ),

Federation of Rainbow Warriors vs. Union of India & Ors. and

Appeal No. 6/2018, Hanuman Laxman Aroskar vs. Union of India,

wherein grant of EC for development of green field International Airport at

Mopa, Goa, was challenged. Project was in category ‗A‘ hence as per EIA

2006 ‗Prior EC‘ was to be granted by MoEF. EC was granted on

28.10.2015. It was challenged by M/s. Federation of Rainbow Warriors

in Appeal No. 61/2015 at Tribunal‘s Western Zonal Bench, Pune.

Another Appeal No. 1/2016 was filed by Hanuman Laxman Aroskar at

NGT, Western Zonal Bench, Pune. Both these appeals were transferred

to Principal Bench at New Delhi and numbered as Appeal No. 5 and 6 of

2018 respectively. One of the issues raised before Supreme Court was;

PP did not give complete information in Form 1 submitted to the

152
Competent Authority for grant of EC; PP is duty bound to make a proper

disclosure and highest level of transparency is required; and there was

concealment of certain facts by leaving certain columns blank or by not

giving required details. It was contended that for these reasons,

application for EC ought to have been rejected.

187. Supreme Court considered scheme of EIA 2006 in detail. Going

into historical backdrop of EIA 2006, Court said that by Constitution

(Forty-second Amendment) Act 1976 w.e.f. 03.01.1977, Article 48A was

inserted to the Constitution which mandates that State shall endeavor to

protect and improve environment and safeguard forests and wildlife of

the country; Article 51A(g) of Constitution places a corresponding duty on

every citizen to protect and improve natural environment including

forests, lakes, rivers and wild life and to have compassion for living

creatures; following decisions taken at United Nations Conference on

Human Environment held at Stockholm (Stockholm Conference) in June

1972, in which India also participated, Parliament enacted EP Act, 1986

to protect and improve environment and prevent hazards to human

beings, other living creatures, plants and property; on 27.01.1994,

MoEF&CC, in exercise of powers under Section 3(1) read with (2)(v) of EP

Act, 1986 and Rule 5(3)(d) of EP Rules, 1986, issued notification, S.O.

60(E), 1974, imposing restrictions and prohibitions on the expansion and

modernization of any activity or new project unless an EC was granted

under the procedure stipulated in the notification; Notification

contemplated that any person undertaking a new project or expanding

and modernizing an existing project, would submit an application to the

Secretary, MoEF; application to be made in accordance with Schedule,

also provided that, it shall accompany project report including EIA

Report, an Environment Management Plan (hereinafter referred to as

153
‗EMP‘) and other details as per the Guidelines issued by Government

from time to time; Competent Impact Assessment Agency would then

evaluate application and submit report; and if necessary, it is also

empowered to constitute a Committee of Experts which would have a

right of entry into and inspection of the site during or after the

commencement of the preparations relating to the project; concealment of

any factual data or submitting false or misleading information would

make the application liable for rejection and would lead to cancellation of

any EC already granted on that basis; EIA 1994 was superseded by EIA

2006; real distinction between EIA 1994 and EIA 2006 is that in the later

EC must be granted by Regulatory Authority prior to commencement of

any construction work or preparation of land; EIA 2006 divides all

projects in Category A and Category B projects; under EIA 1994, PP was

required to submit application along with all reports including EIA report

but under EIA 2006 prior to preparation of EIA report by PP, the

authority concerned would formulate comprehensive Terms of Reference

(hereinafter referred to as ‗ToR‘) on the basis of information furnished by

PP addressing all relevant environmental concerns; this would form the

basis for preparation of EIA Report; a pre-feasibility Report is also

required to submit with the application unless exempted in the

Notification; under EIA 1994, final approval was granted by Impact

Assessment Authority but under Notification of 2006, final regulatory

approval is granted by MoEF&CC or SEIAA, as the case may be; but

approval is to be based on recommendations of EAC functioning in

MoEF&CC or State Expert Appraisal Committees (SEACs) which are

constituted for that specific purpose; thus the salient objective which

underlies EIA 2006 is protection, preservation and continued sustenance

of environment when the execution of new projects or the expansion or

154
modernization of existing projects is envisaged; it imposes certain

restrictions and prohibitions based on the potential environmental

impact of projects unless ‗Prior EC‘ has been granted by the authority

concerned.

188. Supreme Court said that an application must be submitted prior to

the commencement of any construction activity or preparation of the land

at the site. The process to obtain EC comprised broadly 4 stages i.e. (i)

Screening, (ii) Scoping, (iii) Public Consultation and (iv) Appraisal. The

step of screening is restricted to Category B projects. It entails an

examination of whether the proposed project or activity requires further

environmental studies for preparation of an EIA for its appraisal prior to

grant of EC. The projects requiring an EIA are further categorized as

Category B1 projects and remaining projects are categorized as Category

B2 projects. Category B2 projects do not require an EIA. The

categorization is in accordance with the guidelines issued by MoEF&CC

in this regard from time to time. The stage of scoping requires

formulation of comprehensive ToR so as to address all relevant

environmental concerns for the preparation of EIA. Amongst other

things, information furnished by applicant in Form 1 and Form 1A along

with the proposed ToR forms the basis for preparation of ToR. Public

consultation at the third stage is attracted in all Category A and Category

B1 projects. Summary of EIA is prepared in the format given in Appendix

IIIA on the basis of ToR furnished to the applicant. This stage involves

the process by which concerns of local affected persons and others who

have plausible stake in the environmental impact of the project or activity

are ascertained with a view of taking into account all the material

concerns in the project or activity design as appropriate. The stage of

appraisal involves detailed scrutiny by EAC or SEAC of all documents

155
submitted by applicant for the grant of EC. The appraisal is carried out in

a transparent manner in a process to which PP is also invited for

furnishing clarification in person or through an authorized

representative. The scheme requires Regulatory Authority to examine

documents strictly with reference to ToR and if there is any inadequacy to

communicate to EAC or SEAC within 30 days of receipt of the

documents; recommendations made by EAC or SEAC are then required

to be considered by MoEF&CC or concerned SEIAA who are supposed to

communicate their decision to PP within 45 days of receipt of the

recommendations. Ordinarily Regulatory Authorities are supposed to

accept recommendations of EAC or SEAC. In case of disagreement,

Regularity Authority is required to seek a reconsideration of

recommendations by the concerned recommending body. Importance of

provisions of EIA 2006 in reference to protection of environment has been

stressed upon by Supreme Court in para 56 of the report (SCC) as under:

“The 2006 notification embodies the notion that the development

agenda of the nation must be carried out in compliance with norms
stipulated for the protection of the environment and its complexities.
It serves as a balance between development and protection of the
environment: there is no trade-off between the two. The protection
of the environment is an essential facet of development. It
cannot be reduced to a technical formula. The notification
demonstrates an increasing awareness of the complexities of the
environment and the heightened scrutiny required to ensure its
continued sustenance, for today and for generations to come. It
embodies a commitment to sustainable development. In laying down
a detailed procedure for the grant of an EC, the 2006 notification
attempts to bridge the perceived gap between the environment and
development.”

189. Court also observed that under EIA 2006, process of obtaining an

EC commences from the production of information stipulated in Form

1/Form 1A; crucial information regarding particulars of proposed project

is sought to enable EAC or SEAC to prepare comprehensive ToR which

156
applicant is required to address during the course of preparation of EIA.

Relevant observations in para 60 of judgment are as under:

“60. Under the 2006 Notification, the process of obtaining an EC

commences from the production of the information stipulated in Form
1/Form 1A.
……..
……..
Some of the information sought is produced thus:

60.1. Construction, operation or decommissioning of the project

involving actions, which will cause physical changes in the
locality (topography, land use, changes in water bodies, etc.).

60.2. Use of natural resources for construction or operation of the

project (such as land, water, materials or energy, especially any
resources which are non- renewable or in short supply).

60.3. Use, storage, transport, handling or production of substances

or materials, which could be harmful to human health or the
environment or raise concerns about the actual or perceived risks to
human health.

60.4 Production of solid wastes during construction, operation

or decommissioning.

60.5. Release of pollutants or any hazardous, toxic or noxious

substances to air.

60.6. Generation of noise and vibration, and emissions of light and

heat.

60.7. Risks of contamination of land or water from releases of

pollutants into the ground or into sewers, surface waters,
groundwater, coastal waters or the sea.

60.8. Risk of accidents during construction or operation of the

project, which could affect human health or the environment.

60.9. Environment sensitivity which includes, amongst other

things, the furnishing of the following details:

60.9.1. Areas protected under international and national

legislation.

60.9.2. Ecologically sensitive areas

157
 60.9.33 Areas used by protected, important or sensitive
species of flora or fauna.”
(Emphasis added)

190. The importance of correctness and transparency of the information

and that any false statement or concealment of the same would be fatal,

was particularly stressed by Court in para 62 of judgment, observing:

“62. The information provided in Form 1 serves as a base upon

which the process stipulated under the 2006 notification
rests. An applicant is required to provide all material information
stipulated in the form to enable the authorities to formulate
comprehensive ToR and enable persons concerned to provide
comments and representations at the public consultation stage. The
depth of information sought in Form 1 is to enable the authorities to
evaluate all possible impacts of the proposed project and provide the
applicant an opportunity to address these concerns in the
subsequent study. Missing or misleading information in Form 1
significantly impedes the functioning of the authorities and the
process stipulated under the notification. For this reason, any
application made or EC granted on the basis of a defective
Form 1 is liable to be rejected immediately. Clause (vi) of
paragraph 8 of the notification provides thus:

“Deliberate concealment and/or submission of false or misleading

information or data which is material to screening or scoping or
appraisal or decision on the application shall make the
application liable for rejection, and cancellation of prior
environmental clearance granted on that basis. Rejection of an
application or cancellation of a prior environmental clearance
already granted, on such ground, shall be decided by the
regulatory authority, after giving a personal hearing to the
applicant, and following the principles of natural justice.”
(Emphasis added)

191. Supreme Court also referred and approved two judgments of this

Tribunal in Save Mon Region Federation vs. Union of India, 2013 (1)

All India NGT Reporter 1 and Shreeranganathan K P vs. Union of

India 2014 SCC online NGT 15 wherein, on the basis of information

furnished in Form 1, the deficiencies in EIA Report, process of appraisal

etc., were considered in detail to find out whether EC was granted in

accordance with law or not. Court distinguished an earlier judgment in

158
Lafarge Umiam Mining Private Limited vs. Union of India 2011 (7)

SCC 338 observing that it was the case under EIA 1994 when provisions

of EIA 2006 were not applicable. Court said that decision was based on

facts of that case, summarized by Court in Hanuman Laxman Aroskar

(supra) in para 138 of judgment. It was also held that, relevant material,

if has been excluded for consideration or extraneous circumstances were

brought in mind, there was a failure to observe binding norms under EIA

2006 and consequential serious flaw in the decision-making process,

would amount to an illegal exercise and failure of statutory duty, so as to

vitiate EC. In para 157 of judgment, importance of the correct and

complete disclosure of information by PP in his application, Form 1 and

Form 1A, and further consideration by Competent Authority has been

discussed, as under:

“The 2006 Notification must hence be construed as a significant link

in India‟s quest to pursue the SDGs. Many of those goals, besides
being accepted by the international community of which India is a
part, constitute a basic expression of our own constitutional value
system. Our interface with the norms which the international
community has adopted in the sphere of environmental governance
is hence as much a reflection of our own responsibility in a context
which travels beyond our borders as much as it is a reflection of the
aspirations of our own Constitution. The fundamental principle
which emerges from our interpretation of the 2006
Notification is that in the area of environmental governance,
the means are as significant as the ends. The processes of
decision are as crucial as the ultimate decision. The basic
postulate of the 2006 Notification is that the path which is
prescribed for disclosures, studies, gathering data,
consultation and appraisal is designed in a manner that
would secure decision making which is transparent,
responsive and inclusive.”
(Emphasis Added)

192. Further, in para 158 of the judgment, in Hanuman Laxman

Aroskar (supra), Court observed:

“Repeatedly, it has been urged on behalf of the State of Goa,

MoEFCC and the concessionaire that the need for a new airport is
paramount with an increasing volume of passengers and
consequently the flaws in the EIA process should be
disregarded. The need for setting up a new airport is a matter of

159
 policy. The role of the decision-makers entrusted with authority over
the EIA process is to ensure that every important facet of the
environment is adequately studied and that the impact of the
proposed activity is carefully assessed. This assessment is
integral to the project design because it is on that basis that
a considered decision can be arrived at as to whether
necessary steps to mitigate adverse consequences to the
environment can be strengthened.”
(Emphasis Added)

193. Supreme Court ultimately held that report of EIA based on

incomplete information supplied by PP is vitiated. In para 159, it is said:

“In the present case, as our analysis has indicated, there has been
a failure of due process commencing from the non-disclosure
of vital information by the project proponent in Form 1.
Disclosures in Form 1 are the underpinning for the
preparation of the ToR. The EIA report, based on incomplete
information has suffered from deficiencies which have been
noticed in the earlier part of this judgment including the
failure to acknowledge that within the study area
contemplated by the Guidance manual, there is a presence of
ESZs.”
(Emphasis Added)

194. Manner in which application submitted for grant of EC has to be

dealt with by SEIAA or MoEF, has been considered in Bengaluru

Development Authority v. Sudhakar Hegde & Ors.; (2020) 15 SCC

63. Supreme Court had an appeal arising from NGT‘s judgment dated

08.02.2019, whereby EC granted to appellant (BDA) for development of

an eight lane Peripheral Ring Road connecting Tumkur Road to Hosur

Road, a length of 65 kilometers was quashed, on the ground that report

was based on primary data collected more than three years prior to

submission to SEIAA. Tribunal directed that PP will not proceed on the

basis of EC, which was quashed. Three issues were raised before

Supreme Court. For our purpose, relevant question is, ―whether EIA 2006

was followed or not‖. In para 87 of judgment, Court said that

“appraisal by SEAC is structured and defined by EIA Notification,

2006. At this stage, SEAC is required to conduct “a detailed
scrutiny” of the application and other documents including

160
 EIA report submitted by applicant for grant of an EC. Court
also said that upon completion of appraisal processes, SEAC makes
“categorical recommendations” to SEIAA either for grant of a „Prior
EC‟ on stipulated terms and conditions or rejection of the application.
The recommendations made by the SEAC for the grant of EC, are
normally accepted by the SEIAA and must be based on
“reasons”.”
(Emphasis Added)

195. Court further said that reasons furnished by SEAC must be

assessed with reference to the norm that it is required to submit reasons

for its recommendations. Court found that SEAC, in that case, analyzed

the matter perfunctory and fails to disclose reasons upon which it made

recommendation to SEIAA for grant of EC. It merely proceeds on the reply

submitted by PP. In para 89 of judgment, Court said:

“SEAC is under an obligation to record the specific reasons

upon which it recommends the grant of an EC. The requirement
that the SEAC must record reasons, besides being mandatory under
the 2006 Notification, is of significance for two reasons: (i) The SEAC
makes a recommendation to the SEIAA in terms of the 2006
Notification. The regulatory authority has to consider the
recommendation and convey its decision to the project proponent.
The regulatory authority, as para 8(ii) of the 2006 Notification
provides, shall normally accept the recommendations of the EAC.
Thus, the role of the SEAC in the grant of the EC for a
proposed project is crucial; and (ii) The grant of an EC is subject
to an appeal before the NGT under Section 16 of the NGT Act 2010.
The reasons furnished by the SEAC constitute the link upon
which the SEIAA either grants or rejects the EC. The reasons
form the material which will be considered by the NGT when it
considers a challenge to the grant of an EC”.
(Emphasis added)

196. Approving judgment of this Tribunal in Shreeranganathan K P v

Union of India; (2014) SCC Online NGT 15, Supreme Court said:

“EAC had not conducted a proper appraisal given its failure

to consider the available material and objections before it.
The EAC had thus failed to conduct a proper evaluation of the project
prior to forwarding to the regulatory authority its recommendation”.
(Emphasis added)

197. In para 92 of the judgment, Supreme Court said:

161
 “SEAC, as an expert body, must speak in the manner of an
expert. Its remit is to apply itself to every relevant aspect of the
project bearing upon the environment and scrutinize the document
submitted to it. The SEAC is duty bound to analyze the EIA
report. …………..The SEAC is not required to accept either the EIA
report or any clarification sent to it by the project proponent. In the
absence of cogent reasons by the SEAC for the
recommendation of the grant of EC, the process by its very
nature, together with the outcome, stands vitiated.”
(Emphasis added)

198. Reiterating on importance of protection of environment, Supreme

Court said:

“protection of the environment is premised not only on the

active role of Courts, but also on robust institutional
frameworks within which every stakeholder complies with its
duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law requires a
regime which has effective, accountable and transparent institutions.
Equally important is responsive, inclusive, participatory and
representative decision making. Environmental governance is
founded on the rule of law and emerges from the values of our
Constitution. Where the health of the environment is key to
preserving the right to life as a constitutionally recognized value
under Article 21 of the Constitution, proper structures for
environmental decision making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
under Article 14 of the Constitution. Sustainable development is
premised not merely on the redressal of the failure of
democratic institutions in the protection of the environment,
but ensuring that such failures do not take place.”
(Emphasis added)

199. We may now refer to the information furnished by PP in the

application, Form 1; (page 2139). Some informations, relevant for our

purpose, disclosed by PP, are:

― APPENDIX 1
(See Paragraph -6)
FORM 1
(I) Basic Information

Sl. Item Details

No
.
1. Name of the project‟s Proposed Residential Building

162
 Project of M/s Wonder Projects
Development Pvt. Ltd.
2. Sr. No. in the schedule 8(a) Category B2-Building and
Construction project
3. Proposed Total Plot area:
capacity/area/length/tonnage to 50,382.91 Sqm (12.45 Acres)
be handled/command area/lease Total Built-up Area:
area/number of wells to be drilled 1,28,193.9 Sqm
4. New/Expansion/Modernization New Residential units
5. Existing Capacity/Area etc. Plot area:50,382,91 Sqm
(12.45 Acres)
6. Category of Projects i.e. „A‟ or „B‟ Category B-Building and
Construction project for BUA
area >20,000 Sqm < 1,
50,000 Sqm.
9. Location Sy. Nos. 61/2, 62, 63/2 of
Kasavanahalli Village, Varthur
Hobli, Bengaluru East Taluk,
Bengaluru.
Geological Coordinates
Latitude : 12°54‟38.21”N
Longitude: 77°40‟08.52”E
22. Forest land involved (hectares) No forest land is involved

(II) Activity

1. Construction, operation or decommissioning of the Project involving

actions, which will cause physical changes in the locality (topography,
land use, changes in water bodies, etc.)

Sl. Information/checklist Yes Details thereof (with

No. confirmation /No approximate
quantities/rates, wherever
possible) with source of
information on data
1.1 Permanent or temporary Yes The proposed project is being
change in land use, developed on a plot of land
land cover or measuring about 50,382.91
topography including Sqm. Presently the land is
increase in intensity of vacant & the proponent
land use (with respect proposes to develop residential
to local land use plan) apartment. The contour plan
has been enclosed as
Drawings along with the
EMP report.
1.2 Clearance of existing Yes The proposed project site/land
land, vegetation and doesn‘t require any extensive
buildings? clearance of vegetation. The
existing trees will be retained
in green belt development plan
within the project site.
1.5 Construction works? Yes As per conceptual plan only.
1.7 Temporary sites used Yes Temporary sheds will be
for construction works provided for storing of
or Housing of construction materials.
construction workers?
Total 250 nos. of temporary
sheds will be set up for
construction workers with
35 toilets 60 urinals & 35
EWC & 35 bathrooms.

163
1.8 Above ground buildings, Yes Excavation work will be
structures or carried out for foundation of
Earthworks including buildings and basements. The
linear structures, cut total excavated quantity of
and fill or excavations. earth will be approx. 50,000
m3 for phase 1 and 85,000
m3 for phase 2.
1.14 Facilities for storage of Yes During construction phase the
goods or materials? construction materials will
be stored in the temporary
sheds within the site.

During operation phase, DG

lube oil will be stored in a
designated place and the
diesel will be stored in a
leak proof tank. Waste oil
from DG sets will be stored in
leak proof containers on
impervious floors in a
designated place within the
site premises.
1.21 Impoundment, No No such proposals of
damming, culverting, impoundment, damming,
realignment or other culverting, realignment or
changes to the other changes to the
hydrology of hydrology of watercourses or
watercourses or aquifers shall be done at the
aquifers? project site.
1.22 Stream crossings? Yes A primary nala connecting to
Kaikodrahalli lake is crossing
across the project site. 50 m
buffer on both side are
provided as per the NGT
specifications.
1.23 Abstraction or transfers No Construction phase: Tertiary
of water from treated water will be used for
curing and dust suppression
during construction phase.
Concreting and Domestic
water requirements during
construction shall be met by
external authorized supplier.

Operation phase: Water

requirements will be met by
BWSSB & treated water from
STP of capacity 210 KLD
and 280 KLD.
1.24 Changes in water Yes Runoff will increase due to
bodies or the land increased paved surface.
surface affecting Hence the runoff from the
drainage or run-off? project site will be recharged
to ground water aquifer by
implementing well designed
Rain water harvesting system.

2. Use of Natural resources for construction or operation of the

Project (such as land, water, materials, or energy, especially any
resources which are non-renewable or in short supply):

164
 Sl. Information/checklist Yes/ Details thereof (with
No. confirmation No approximate
quantities/rates,
wherever possible) with
source of information on
data
2.1 Water (expected source & Yes Construction phase:
competing users) unit KLD Approx: 150 KLD
Source: Tanker/Treated
water.

4. Production of solid wastes during construction or operation or

decommissioning (MT/month)

Sl. Information/ checklist Yes/ Details thereof (with

No. confirmation No approximate quantities/
rates, wherever possible)
with source of information
on data
4.1 Soil, overburden or mine No Excavated earth will be
wastes reused for backfilling and
landscape development.
4.7 Construction or Yes Construction waste such as
demolition wastes excavated Earth (soil & rock);
50,000 cum and 80,000 Cum
generated for block 1 and block
2 out of which 14,900 Cum and
20,000 Cum will be used within
the project site for backfilling
for block 1 and block 2
respectively. Non-recyclable
waste such as concrete waste,
etc. will be used for road
construction and all the
recyclable wastes such as
steel, other metal scrap, etc.
will be sold to recyclers/scrap
dealers.

(III) Environmental Sensitivity

Sl. Information/checklist Yes/ Details thereof (with

No. confirmation No approximate
quantities/rates,
wherever possible) with
source of information on
data
1 Areas protected under No Not applicable
international conventions,
national or local
legislation for their
ecological, landscape,
cultural or other related
value.
2 Areas which are important Yes Kaikondrahalli lake exist
or sensitive for ecological at a distance of 75 m
reasons-Wetlands,
watercourses or other Harlur/”Kasavanahalli

165
 water bodies, coastal zone, Lake” at a distance of
biospheres, mountains, 0.800KM
forests.
3 Areas used by protected, No Not applicable
important or sensitive
species of flora or fauna for
breeding, nesting, foraging,
resting, over wintering,
migration. ”

200. Several information given, we find are either incorrect or

incomplete and some information not given. However, we propose to deal

his aspect in detail, after referring to documents of other authorities.

Development Plan:

201. The application submitted by PP for sanction of Development Plan

in not on record. A copy of the map/DP is part of record on page 270

filed as annexure R-3 with reply of respondent-11 and 12. It was

approved by BDA vide Resolution dated 09.11.2017. Residential

Development Plan Work Order was issued on 07.03.2018. It shows total

site area 51698.16 square meters, kharab area 1315.21 square meters

and site area for development 50382.95 square meters. Gross built up

area shown was 169000 squire meters. Further details of area, as per

Zoning Regulation and Plan, are as under:

Sl. Particulars As per Zoning As per Plan

No. Regulation
1. Park and Open 5038.29 square 5093.87 square meters
Space meters (10.11%)
(10.00%)
2. Civic Amenities 2519.14 square 2540.66 square meters
meters (5.04%)
(5%)
3. Site area (area 47842.29 square meters (the
considered for ____ area considered for FAR is site
FAR) area for development-area for
civic amenities
4. Coverage 50% 10842.17
47842.29=22.66% < 50.00%
5. No. of Floors ___ 2BF+GF+20Upper Floor

6. Setback Front=16.00M Front=16.00M

Rear=16.00M Rear=58.54M

166
 Left=16.00M Left=16.00M
Right=16.00M Right=18.02M
7. No. of Units No. of units=625 units
___ EWS units = 63 units(10.08%)
Total units = 688 units
8. Car Parking 723 Cars 313+445=758 Cars

202. DP map shows that PP proposed two places as ―Park and Open

Spaces‖ as Part 1 and Part 2, comprising area 1687.15 square meters

and 3406.72 square meters. Both are abutting ―Kaikondarahalli Lake‖.

In effect, substantial area of ‗Buffer Zone‘ of lake has been claimed by PP

for merging/absorbing as development of Park and Open Space in the

project. That too, abutting the lake. DP also shows a nalla/Kharab, 13

guntas, passing through the project land, almost in the middle of the two

blocks, proposed to be constructed by PP. From the lake‘s water

periphery to actual construction boundary line of building block, PP has

shown a distance of 75 meters but there is 8 meters wide Fire Drive Way

which comes between the said area. Even the set back of building is

within ‗Buffer Zone‘. The built up area was not considered in the light of

amended Item 8 of Schedule of EIA 2006 which covers service area of

construction project.

203. ‗Buffer Zone‘ of 25 meters and 50 meters has also been shown in

DP map but without mentioning that in the vicinity of disputed project

land, there existed other nallas whether primary, secondary or tertiary.

The nalla wherefrom 25 meters buffer line has been shown, we find that

in between there are structures like OWC, Gas Bank, Transformer Yard

and entrance of the building so far as Block 1 is concerned. In respect of

Block 2, set-back, Fire Drive Way Gas Bank and entrance are within

‗Buffer Zone‘ of 25 meters.

167
204. Boundary line of the project is shown abutting the lake on North

side, a Primary nalla in the middle of land, and also at a little distance

from Secondary nalla, wherefrom 50 meters ‗Buffer Zone‘ has been taken.

Drive way and boundary wall itself is more than 25 meters away from

Block 1 and near about 20 meters to Secondary nalla. Similar is the

position in respect of Tertiary nalla viz-a-viz building of Block 2.

NOC from Fire Safety Department:

205. PP applied for grant of NOC for Phase 1 before Karnataka State Fire

and Emergency Services i.e. KSFES in November, 2017. In the

application, it proposed construction of high rise residential building i.e.

Phase 1 with 3 towers i.e. tower A, B & C.

206. Tower A & C, each comprising of 2 common basements, common

ground and 20 upper floors and tower B comprising of 2 common

basements, common ground and 19 upper floors at Survey nos. 61/2, 62

and 63/2.

207. The site was inspected by Chief Fire Officer (hereinafter referred to

as ‗CFO‘), Bangalore East on 29.11.2017. He submitted report dated

04.12.2017/07.12.2017 to Director General of Police and Director

General, KSFES. Relevant extract of his report is reproduced as under:-

“ Part-A General Building requirements

Sl. Details General Requirements
No.
2. Number of Buildings : One Building i.e. Phase-1
with 3 Towers i.e. Tower-A,
B, C – joined together
3 Number of Floors : Tower-A & C
Each of 2 common
Basements, common Ground
floor & 20 upper floors

Tower-B
2 common Basement,
common Ground floor & 19

168
 upper floors.
5 Floor wise details of the occupancy:-
Tower-A, B & C : For parking 131 cars, 1
Common Basement-2 pump room, 1 electrical
room and 1 STP
Common Basement-1 : For parking 146 cars, 1 D.G
Room and 1 electrical
room
Common Ground floor : For parking 120 cars, 1
electrical panel room, 1
communication room, 1
laundry & pool plant room
and 3 fire command
centre/panel room.
Total : 238 flats + 27 EWS
flats=265 flats
7 Site Area : 50,382.91m Sq. mtrs
As per Part 3
Development Control
rules and General
Building requirements
clause 2.75 of NBC
Site (Plot)- A parcel
(piece) of land enclosed
by definite boundaries
9 Total Built-up area : 59,091.85 Sq. mtrs. ”

208. CFO made following recommendations:

“From the above details it is clear that the Builder has

incorporated all the Required fire prevention, fire fighting
and evacuations measures in the drawings as per Part-Il &
IV of N.B.C. Hence herewith recommended to issue N.O.C. for
High Rise Residential Building by M/s Wonder Projects
Development Pvt. Ltd., with 3 Towers 1.e. Tower-A, B & C-
joined together at Sy. No. 61/2, 62& 63//2, Kasavanahali
Village, Varthur Hobli, Bangalore East Taluk.”

209. Another application was filed by PP on 14.03.2018 for grant of NOC

by Department of KSFES whereupon site was visited by CFO on

19.03.2018. He submitted report dated 21.03.2018. Therein, PP sought

NOC for construction of high rise residential building i.e. Block-2 with 4

towers i.e. Tower A, B, C, & D. The relevant columns of the inspection

report in column 3, 4, 6 and10:

169
 Details of Fire prevention, firefighting & Evacuation measures to be
furnished for issuing of NOC & CC etc; for the construction of High
Rise Residential Buildings (Group A) Sub Division A-4
Part-A General Building requirements
Sl. Details General Requirements
No.
3 Number of Buildings : One building i.e. Block-2 with 4
Towers i.e. Tower-A, B C & D
joined together
4 Number of floors : Tower-A
Common Basement, common
ground floor common 1st floor &
2nd floor to 18th floor

Tower B, C & D
Each of common Basement,
common Ground floor, common
1st floor & 2nd floor to 20th floor
6 Floor wise details of the occupancy
Tower-A,B, C & D : For parking 159 cars, 1 PHE
Pump Room & Fire Pump Room.
Common Ground floor : For parking 150 cars, 4 Fire
Control Room & DG Room.
Common 1 floor
st : For parking 148 cars, 3 Electrical
Panel Room, 1 Communication
Room & Swimming Pool Plant
Room.
Tower-A
2nd floor to 4th floor : 6 flats on each floor x 3 floors =
18 flats.
5 floor to 16 floor
th th : 8 flats on each floor x 12 floors =
96 flats.
17th floor : 7 flats out of which 2 flats are
duplex type.
18th floor : Upper portion of duplex flats.
Tower-B
2nd floor to 18th floor : 4 flats on each floor x 17 floors =
68 flats.
19th floor : 2 flats, out of which one flat is
duplex type and Multipurpose
Hall
20th floor : Upper portion of duplex flat,
Maids Room & Terrace/refuge
area.
Tower-C
2nd floor to 4th floor : 4 flats on each floor x 3 floors =
12 flats.
5 floor to 16 floor
th th : 6 flats on each floor x 12 floors =
72 flats.
17th floor : 6 flats.
18th floor : 4 flats, Library, Café, Gym &
Outdoor area.
19th floor : 4 flat out of which 2 flats are
duplex type, Aerobics/Dance,
Yoga, Cards Area, Spa and
Saloon
20th floor : Upper portion of duplex flats &
Terrace/refuge area.
Tower-D
2nd floor to 18th floor : 4 flats on each floor x 17 floors =

170
 68 flats.
19th floor : 3 flats, out of which one flat is
duplex type and Squash Court
(double height)
20th floor : Upper portion of duplex flat,
Indoor Games & Terrace/refuge
area.
Total : 360 flats
10 Total Built-up area : 64,958.15 Sq. Mtrs

210. Thus in the two reports, CFO found,

 Total flats: 265+360=625

 Total built up area: 59091.85+64958.15=124050 square meters

 Parking for cars: 397+547=854

211. Office of Director General of Police and Director General, KSFES

sent letter dated 22.12.2017 in respect of NOC sought by PP for Block-1,

Towers A, B, & C to Commissioner, BBMP informing that NOC is issued

and a similar letter dated 20.04.2018 in respect of Block-2 was sent to

Commissioner, BBMP.

NOC for water supply from BWSSB:

212. PP applied for NOC to respondent-9 (BWSSB) proposing

construction of residential building comprising of Block 1 & 2, each Block

comprised of 2 BF+GF+20UFs. Total site area disclosed was 51698.16

square meters and total built-up area as 171755.37 square meters. NOC

was issued by Chief Engineer (M), BWSSB after having approval from

Board on 23.08.2018. He mentioned area for which NOC was issued, as

under:

“The proposed residential building comprising Godrej HDIL consist of

Block-I and II each block consists of 2 BF + GF + 20 Upper Floor. The
sital area is 51698.16 smt. and with total built-up area is
171755.37 Smt. The premises comes under the jurisdiction of 110
villages of BBMP area.”

171
Building Sanction Plan by BBMP:

213. Application dated 15.11.2017 was submitted by PP before BBMP

for sanction of Building Plan. Application disclosed construction

proposed at Khata No. 4131, Survey No. 61/2, 62 and 63/2,

Kasavanhalli Village, Varthur Hobli, Banglore East Taluk, Ward No. 150,

Mahadevapura Zone, Bangalore. PP had applied for sanction of Block-1

only since in para 1 of the conditions of Building Plan Sanctioned Order

dated 30.08.2018/31.08.2018; details of construction for which sanction

was given are mentioned as under:

“1. Sanction is accorded for the Residential Apartment Building at

Khata No. 4131, Sy No. 61/2, 62, 63/2, Kasavanhalli Village,
Varthur Hobli, Banglore East Taluk, Ward No. 150,
Mahadevapura Zone, Banglore.

a) Block-1 Consisting of 2BF+GF+19UF & 20 UF only.”

214. Some of the conditions of sanction order are as under:

“23. The applicant shall ensure that the Rain Water Harvesting
Structures are provided & maintained in good repair for storage
of water for non-potable purposes or recharge of ground water
at all times having a minimum total capacity mentioned in the
Bye-law 32(a).
32. Sufficient two wheeler parking shall be provided as per
requirement.
41. All other conditions laid down by Bangalore Development
Authority while approving the Development Plan for the
project should be strictly adhered to.
42. All other conditions and conditions mentioned in the work
order issued by the Bangalore Development Authority vide
No. BDA/TPM/DLP-41/2016-17/2161/2017-18 dated 07-03-
2018 while approving the development Plan for the project
should be strictly adhered to.
46. The owner/Developer should obtain NOC from KSPCB and
submit the same within 30 days from the date of issue of
License/Plan
47. In case of any false information, misrepresentation of facts, or
pending court cases, the plan sanction is deemed cancelled.”

172
215. It is also evident from this document of BBMP that in support of

his claim for the aforesaid sanction, PP relied on and submitted following

documents received from other departments:

Sr. Name of the Date of the document and Nature of

No. Department letter no. the
Document
i. Airport Authority 20.10.2016 NOC in
of India AAIKIA/ATM/NOC/8068-66 respect of
height
clearance
ii. BSNL 26.12.2016
DE/SAN/BG/S-11/VOL
XIII/20 @ BG-41
iii. Fire Force 22.12.2017 Clearance
Department GBC(1)/336/2017 from Fire
Department
iv. SEIAA 10.01.2018 EC
SEIAA 114 CON 2017

v. Hindustan 11.01.2018
Aeronautics Ltd. ASC/DGM(AO)/131/14-
17/783/2017
vi. BESCOM 29.06.2017 & 31.01.2018
SEE/BSC/EE(O)/AEE-
3/NOC-06/17-18/3520-22

216. It is also mentioned in aforesaid NOC dated 30.10.2018 that PP

paid Rs. 17,17,554/- vide receipt no. 65039 dated 12.10.2018 and Rs.

1,03,59,262/- towards Advance Probable Pro-rata charges vide receipt

no. 65040 dated 12.10.2018. It further paid a sum of Rs. 98,25,610/-

towards Beneficiary Capital Contribution/GBWASP Charges vide receipt

No. 65041 dated 12.10.2018. There is a note at the end of the NOC and

para 2 thereof says as under:

“The current NOC shall be only for residential property & the
applicant shall obtain the revised NOC from BWSSB for any
modification in the plan.”

Consent for Establishment by KSPCB:

217. PP submitted application dated 18.01.2020 before KSPCB for grant

of Consent for Establishment (hereinafter referred to as ‗CFE‘). In the

173
application he claimed that he proposes to construct residential

apartment with 655 flats having built up area 128193.9 Square meters at

Survey nos. 61/2, 62 and 63/2 Kasavanahalli village. The application

was supported by a project report; BBMP khata certificate dated

20.10.2016 alongwith KE Form no. 1 for land measuring 12 acre 18

guntas; partition deed dated 21.08.2003; deed of absolute sale dated

23.07.2016 in favour of M/s. Wonder Projects Development Pvt. Ltd. and

M/s. Godrej Properties Ltd.; land conversion order dated 31.03.2006;

hydrological study report of proposed project site; STP feasibility report;,

analysis report of ambient air quality; ambient noise measurement;

water quality and soil report on geo-technical investigations of proposed

project site; BDA letter dated 23.09.2017 with regard to providing water

and UGD stating that issue of NOC is withheld and to be considered on

completion of work of project; NOC dated 21.09.2016 issued by Airport

Authority of India with regard to height clearance; village map showing

project location; EC dated 10.01.2018 issued by SEIAA, Karnataka;

MoEF&CC approval of drawing of site plan of electrical lay out, upper

basement electrical layout plan and sanctioned drawing of proposed

project and resolution of authorization. The site was inspected on

05.02.2018 by Shri S. Dinesh, Environmental Officer, Bengaluru-

Bomanahalli. He submitted report on 23.02.2018 (annexure R2 at page

473 in reply of KSPCB). Report shows that as per site plan, PP was to

construct 655 flats and club house in 2 blocks; Block 1 comprised of 265

units and Block 2-390 units, having built up area 93423.70 Square

meters; building configuration was 2BF+ GF+19UF+TF/20 floor; CFE was

requested to construct residential apartment with 655 flats having built

up area 128139.9 square meters; and that parking for 877 cars would be

provided.

174
218. Location details are given in the inspection report as under:

“Location Details: As per the present status, the project site is

surrounded by “Kasavanahalli Lake”, private properties &
residences towards North, Residential lay out towards West, Vacant
Land towards East, Residences & Private properties and Shriram
Chirping Woods Apartment towards South direction. At the time of
inspection, it was observed that the Project authorities have not
started any construction work at the project site.

 Water Body: The nearest water body to the proposed project

site is “Kaikondarahalli Lake” & “Kasavanahalli Lake”.
The “Kaikondarahalli Lake” is located adjacent to the
proposed Project boundary towards north direction. The
project proponent have earmarked 75.67 tm „Buffer Zone‟ from
proposed building line (i.e. block 1 &2) to lake boundary, the area
is buffer area & is earmarked for parks/green belt. The
“Kasavanahalli Lake” is located at distance of about 393
m towards South respectively.

 Stream/Nala/drain: As per village map & KMZ survey sketch

published in the survey of land records (BBMP limit) there is
stream/nala passing in the middle of proposed project site,
which flows from “Kaikondarahalli Lake” to Kasvanahalli
Lake. At present the sewage is flowing in this stream. For this
stream/nala, the P/A‟s have earmarked 50 m „Buffer
Zone‟/distance from building line (i.e. Block 1 & 2) to edge of
stream & the area is buffer area is earmarked for
parks/green belt.

 As per village map, other two nala/drains are located towards

South direction from proposed site; i.e., one nala/drain is
located in Sy. No. 61/1 of Kasavanahalli Village i.e., towards
South West side & runs parallel to proposed site. The
distance b/w the building line (i.e. Block 1) to the said nala
is about 23 m and to the project boundary is 16 m. The copy
of survey sketch of proposed project site is enclosed along with
report for your kind reference.

 The second nala/drain is located in Sy. No. 57 of

Kasavanahalli Village i.e., towards South East side & runs
parallel to proposed site. The distance b/w the building line
(i.e., block 2) to the said nala about 29 m and to the project
boundary is 19.19 m. Further, as per the survey sketch of Sy.
No. 57 published in the land records, the above said
nala/drain area has been encroached by private layout. The
copy of the survey sketch of Sy. No. 57 is enclosed along with
report for your kind reference.

175
  However, as per CDP map (RMP -2015) there is no
nala/stream/drain as mentioned above. CDP copy enclosed.”

219. Inspection report also said that PP has proposed to construct STP

with the capacities of 210 KLD for block-1 and 220 KLD for block-2;

design based on SBR technology. Inspecting authority mentioned in the

report that STP proposed is designed for old sewage discharge standards,

hence issue of CFE can be considered after receipt of revised STP design

details for new sewage discharge standards. The relevant extract of

inspection report reads as under:

“The STPs has been designed for old sewage discharge standards.
Hence, issue of CFE can be considered after receipt of revised
STP design details for new sewage discharge standards.”

220. Location of STP is mentioned in inspection report as under:

“Location of STP: P/As have proposed to provide STP of capacity

210 KLD towards South in block-1 building & STP of capacity 280
KLD towards West side block-2 building & the same has been
specified in site plan.”

221. On Rain Water Harvesting System, report mention as under:

“Rain water harvesting system: The P/P has submitted rain water
harvesting proposals. They have proposed to provide rainwater
collection tank 46 cum in block-1 & 60 cum in block-2 and also
recharge pits of 10 No‟s at strategic points along the project
boundary.”

222. Inspecting authority found that the site plan provided to KSPCB is

distinct than the plan for which EC was granted by SEIAA and also

details given in the application. He therefore, recommended that issue of

CFE can be considered after receipt of revised site plan for built up area

128193.9 square meters. Para 3 of inspection report under heading

―Other Specific Observations‖, reads as under:

“The P/As have sought CFE to construct residential apartment with

construct residential apartment with 655 flats & club house

176
 having BUA 1,28,193.9 sq.m, STP of capacities 210 KLD & 280
KLD and to install DG set of capacities 320 KVA x 1 No & 500
KVA x I No in block-1 and 380 KVA x 1 No, 500 KVA x 1 No in
block 2. However, the site plan has been submitted for
residential apartment with 655 flats & club house (block-1 -
265 units &block-2- 390 units) having BUA of 93423.70 sq.m.
Hence, issue of CFE can be considered after receipt of revised
site plan for BUA 1,28,193.9 sq. m along with signature.”

223. With respect to water bodies/drain and ‗Buffer Zone‘, in para 6 of

inspection report, under the heading ―Other Specific Observation‖,

inspection report said:

6. As per NGT order dated: 04.05.2016, minimum 50 mt, 35 m & 25

m „Buffer Zone‟ is to be maintained from Primary Rajakaluve,
Secondary Rajakaluve & Tertiary Rajakaluve respectively. As per
village map & KMZ survey sketch published in the survey of land
records (BBMP limit) there is stream/nala passing in the
middle of proposed project site, which flows from
“Kaikondarahalli Lake” to Kasvanahalli Lake. At present
the sewage is flowing in this stream. For this stream/nala, the
P/A‟s have earmarked 50 m „Buffer Zone‟/distance from
building line (i.e. block 1 & 2) to edge of stream & the area is
buffer area is earmarked for parks/green belt.

7. As per village map, other two nala/drains are located

towards South direction from proposed site; i.e., one
nala/drain is located in Sy. No. 61/1 of Kasavanahalli
Village i.e., towards South West side & runs parallel to
proposed site. The distance b/w the building line (i.e., block 1) to
the said nala is about 23 m and to the project boundary is 16 m.

8. The second nala/drain is located in Sy. No. 57 of

Kasavanahalli Village i.e., towards South East side & runs
parallel to proposed site. The distance b/w the building
line (i.e., block 2) to the said nala about 29 m and to the
project boundary is 19.19 m. Further, as per the survey sketch
of Sy. No. 57, published in the land records, the above said
nala/drain area has been encroached by private layout.”

224. Report also noted excavation of soil, construction of model flat and

levelling of earth which shows that construction was started even before

grant of EC. The matter was considered by concerned Committee of

KSPCB in the meeting dated 26.07.2018. After consideration, it

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recommended to call PP for technical presentation before Chairman,

KSPCB. PP made technical presentation on 24.08.2018 in the Head Office

of KSPCB which was attended by officers of the Board. In the

proceedings of technical presentation dated 28.08.2018, recorded by

Chairman KSPCB, it was mentioned that Project Consultant showed that

it is maintaining ‗Buffer Zone‘ from lake, primary drain, tertiary drain and

he heavily relied on EC dated 10.01.2018 granted by SEIAA, Karnataka.

The relevant extracts of Technical presentation proceedings dated

28.08.2018, are as under:

―Dr. Shanth Thimmaiah, Project consultant has: delivered

Technical presentation about their project and showing the village
map & proposed residential development plan approved by BDA
for maintaining the buffer of 75 meter from lakes to building line,
50 meter from primary nala and 25 meter from tertiary nala as the
project comes in BBMP area. Also informed that they have obtained
EC from SEIAA on 10.1.2018 for the proposed residential
apartment having built up area of 1,28,193.90 sq.mtr consisting of
2 blocks with STP capacity of 210KLD& 280 KLD.

Further, during Technical presentation, the project authorities

have submitted developing plan approved by BDA. In this drawing
shows that between 2 Blocks North-East to South -East
Kasavanahalli & Kaikondanahalli lakes. The project authorities
have left buffer of 50 meters from the edges of either side of
nala to the building line and further they have left 75 meter
buffer from Kaikondanahalli lake to building line. Further on
southern side there is a single line nala from east to south and they
have left 25 meter from the edge of nala.

The project authorities have informed that they have obtained EC

from SEIAA on 10.1.2018 and also submitted building drawing
signed from BDA and as per this drawing they have left set back/
‗Buffer Zone‘ as per Hon‘ble NGT orders. Also they have proposed to
install 2 STPs of 210 KLD and 280 KLD in still parking area (floor).‖

225. An affidavit was also filed by PP that they have complied all NGT

guidelines and applicable norms, with further reference to EC dated

10.01.2018 issued by SEIAA, Karnataka and DP (Development Plan)

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approved by BDA vide letter dated 07.03.2018. The short affidavit reads

as under:

―This is to certify that M/s. Wonder Projects Development Private

Limited are developing Residential Apartment Project with Total
Built up Area (TUBA) of 1,28,193.90 Sq. Mtrs., at Sy. Nos. 61/2, 62
and 63/2 of Kasavanahalli Village, Varthur Hobli, Bangalore East
Taluk, Bangalore.

We have already obtained Environmental Clearance from SE1AA-

Karnataka vide their Letter No. SEIAA 114 CON 2017, Dated:
10.01.2018 and Development Plan was approved by Bangalore
Development Authority (BDA) vide their Letter No. BDA/TPM/DLP-
41/2016-17/2161/2017-18, Dated: 07.03.2018.

We would like to bring to your kind notice that we have complied

with all the NGT Guidelines and applicable norms while developing
this proposed residential project.‖

226. Ultimately, KSPCB issued CFE on 12.10.2018 for construction of

residential apartments with 655 flats and club house having total built

up area of 1,28,193.9 square meters. Aforesaid CFE dated 12.10.2018

shows that concerned Committee recommended consent in its meeting

dated 15.09.2018 and after approval by Member Secretary, Chairman,

CFE was issued. One of the conditions in clause (viii) general sub-clause

6 of CFE dated 12.10.2018 reads as under:

“6.The applicant shall not change or alter (a) No. of flats (b)
building plan (c) the quality, quantity or rate of
discharge/emissions and (d) install/replace/alter the water or
air pollution control measures without the prior approval of
the Board.‖

227. It also appears that an Infrastructure Cell of KSPCB reviewed the

matter on 12.09.2018 before it being considered for grant of CFE and,

therein, basically the Cell relied on technical presentation of PP, EC dated

10.01.2018 issued by SEIAA, Karnataka and DP (Development Plan)

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approved by BDA. These proceedings are on record at page 508/509, and

relevant extract reads as under:

―After technical presentation, the Presiding officer directed

the Board officers to process the CFE application by placing
the subject before the forth coming CCM for deliberations on
issue of CFE.

Whereas, once again the subject is placed in the Consent

Committee Meeting held on 06.09.2018 and the committee
after detailed deliberations, recommended to defer the subject
for want of further clarification. Based on the proceedings,
the project authorities have submitted the clarification.

Recommendations of Infrastructure Cell:

Based on the above, the review subject is placed before the CCM
for deliberation & decision for disposal of CFE application.‖

228. The above discussions show that the land of disputed project was

recorded in Revenue Records as an agricultural land till March 2006.

The erstwhile owner applied for conversion of nature of land from

agriculture to non-agriculture which was allowed by three separate

orders dated 31.03.2006, permitting change of use from agriculture to

non-agriculture of 3 acres 2 guntas land in Survey no. 62; 3 acres 5

guntas in Survey no. 61/2 and 6 acres 21 guntas in Survey no. 63/2. PP

i.e. R-11 and 12 purchased land vide sale deed dated 23.07.2016. Since

the land purchased by PP was in separate Revenue khatas, on their

application, amalgamation of 3 Survey nos. was allowed by Competent

Authority vide order dated 20.10.2016. The first No Objection Certificate

(hereinafter referred to as ‗NOC‘) was received by PP from Air Port

Authority of India who granted permission vide letter dated 21.09.2016

whereby height clearance of permissible top elevation above sea level was

restricted to 938.73 meters. Another NOC was issued by Bharat Sanchar

Nigam Limited by order dated 26.12.2016.

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229. In RMP-2015, entire area where land in dispute situated was

shown in the category of ―Industrial (Hi-Tech) Zone‖. PP applied for

change of user and State of Karnataka allowed it by order dated

24.10.2017. Consequential Order was issued by BDA on 08.12.2017.

Neither SEIAA, Karnataka nor KSPCB made any attempt to find out how

PP could commence construction before grant of EC or Consent to

establish and also failed to examine built up area disclosed differently in

DP rendering application cognizable by MoEF&CC.

230. The first question has been argued by learned counsel for

appellant/applicant on two aspects. First, that built up area was not

correctly disclosed by PP and deliberately has been shown lesser so as to

avoid deeper scrutiny for grant of EC by MoEF&CC. The project was in

Category A, having built up area of more than 150000 square meters, but

playing fraud and also misrepresentation, PP had shown as less than

150000 square meters in application, Form 1 and 1A. Second aspect is,

that the relevant informations with regard to ecology, environment,

surrounding area, wetlands, drains etc. were not given correctly and,

therefore, application for EC was liable to be rejected.

231. Proceeding to consider the aspect about built up area disclosed by

PP for grant of impugned EC dated 10.01.2018, we find that copy of

application for EC dated 14.10.2017 submitted to SEIAA, Karnataka by

PP is annexed as annexure A4 at page 58 in Appeal No. 54/2018.

Relevant aspects of this application, we have already noted.

232. It is evident therefrom that PP disclosed total plot area as 50382.91

square meters i.e. 12.45 acres, total built up area as 128193.9 square

meters and B-2 category. In Appendix 1, Form 1 Clause (I), Basic

Information, Sl. No. 6 ―Category of Project i.e. ‗A‘ or ‗B‘, PP has mentioned

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the project ―Category B-Building‖ and construction of project for built up

area more than 20000 square meters and less than 150000 square

meters‖.

Kharab Land:

233. KSPCB enquired from the Office of Assistant Director, Land

Records, Bengaluru about kharab land. Vide letter dated 06.03.2018, it

provided measurements of Storm Water flow area in kharab out of Survey

no. 63.

234. BBMP vide letter dated 07.03.2020 informed KSPCB that its

officials inspected site on 02.03.2020 where construction of Multi-storied

Residential Apartment Complex was being carried out in Survey no. 61,

62 and 63. The spot was verified, referring to village map

(Kasavanahalli). As per village map, two streams that originated from

―Kasavanahalli Lake‖ and flow towards ―Kaikondarahalli Lake‖ via Survey

no. 63, one stream flows inside Survey nos. 51, 57 and 63 and another

stream flows in Survey nos. 31, 47, 48, 46, 58 and 59, joins in Survey no.

57 and flows in Survey No. 63. These streams flow in kharab area of

respective survey numbers. Since two streams joins together in Survey

no. 57 and flow in Survey no. 63, the said drain in Survey no. 63 is to be

considered as ―Secondary drain‖. It was also pointed out that a single

line drain was spotted, called ―Agricultural drain‖ or ―Feeder Channel‖ in

Survey no. 56 and 57 adjacent to Survey no. 63. The said drain ends on

―Secondary drain‖. Since single line drain terminates, at ―Secondary

drain‖ is a Pillu Kaluve or a lead of drain for which buffer is not

applicable. Further, one more single line drain is spotted in Survey no.

61, 43, 35 and 37. Since these single line drain runs in various Survey

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numbers, the same is treated as ―Tertiary drain‖. Report dated

07.03.2020 given by officials as available on record, reads as under:

“The said spot was verified with respect to the RMP-2015.

According to RMP-2015 some portion of the eastern part of
survey no. 61 & 62 is marked as valley zone. On verification
at spot the drain as marked in RMP-2015 is not constructed,
however the area earmarked for the valley is kept as non-
construction zone. The width of the valley Zone as per RMP-
2015 considering the highest width is 53.05 mtrs. On verification,
the buffer left at the spot from the building line to the centre of
valley zone is (53.05/2)+8.16-34.66 mtrs which is above the
prescribed buffer for secondary drain (25.00 mtrs).

The said area was verified with the plan sanctioned by

Bruhat Benguluru Mahanagara Palike. As informed in the above
paragraph the nala in survey no. 63 is considered to be a
Secondary drain. However, the building line of each of the towers
is more than 50.00 mtrs away from the edge of the nala.

Further, single line drain called the Agriculture drain or

Feeder Canals exists in survery no.56 and 57 adjacent to survey
no. 63 and this drain ends on the Secondary drain and thus this
drain is treated as lead-off drain for which buffer is not
applicable. One more drain is running in survey no. 61, 43, 35
and 37. Since, these drains are running in various survey
numbers, the same is treated as Tertiary drain and on verification
in the sanctioned plan issued by Bruhat Bengaluru Mahanagara
Palike it is observed that 25.00 mtrs of Buffer is maintained from
the Building line.

Therefore, it is found that there is no violation of the Buffer

area by M/s Wonder Projects (P) Ltd. and M/s Godrej Properties
Ltd. pertaining to storm water drains in the premises under
question.

As informed in the earlier letter dated:19.12.2019 the M/s

Wonder Projects (P) Ltd. and M/s Godrej Properties Ltd. have
obtained permission for construction of Storm water drain on Self
Financing/Self Execution vide CE(SWD)/PR/140/17-18, dated
02.08.2017 by the Chief Engineer (SWD), and the construction is
as per the approved drawings.”

235. PP did mention that total plot area was 51718.83 square meters

whereof 1335.92 square meters was ‗kharab‘ land which could not have

been used for any purpose by PP. Hence available area of land for project

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was 50382.91 square meters. This fact, we find mentioned in the

inspection report dated 23.02.2018 submitted by Environmental Officer

of KSPCB. PP knew that no construction was permissible on kharab still

sought permission from BBMP, started to construct RCC Drain box and

did not disclose this fact in application for EC.

236. The date of submission of DP for sanction before BDA is not on

record but approved map i.e. DP which is on record as annexure R-3 at

page 270, to reply submitted by PP (respondents-11 and 12) in Appeal

No. 54/2018. It shows that BDA vide Resolution No. 128/2017 dated

09.11.2017 approved DP. The aforesaid DP shows details therein with

regard to ―built up area‖ as under:

Gross area Deduction Built up FAR Net FAR No. of units

for shafts/ area Deductions
cutouts

Block-1 69222.22 7447.45 61774.77 15348.15 46426.62 265+27 EWS

=292

Block-2 100735.15 35360.67 65374.48 17095.74 48278.74 360+36 EWS

=396

Total of Block- 169957.37 42808.12 127149.25 32443.89 94705.36 625+63=

1 and Block-2
688

237. DP map also shows a Primary nala passing through the project

land and shown as ‗kharab‘.

238. Further, the fact that DP was sanctioned/approved by BDA‘s

Committee by Resolution dated 09.11.2017 means that application and

plan must have been submitted to BDA at an earlier point of time i.e.

almost simultaneous or may be a little before when application for grant

of EC was submitted on 14.10.2017 yet PP gave different built area.

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Apparently it was to avoid deeper scrutiny applicable to projects in

category A.

Permission for Construction of RCC drain and RCC Culvert:

239. The mischief in respect of SWD flowing from one lake to another

and land being kharab is further evident from fact that even before

change of land use by Karnataka Govt. vide order dated 24.10.2017, PP

submitted an application/letter dated 13.06.2017 to BBMP requesting to

permit construction of RCC drain and RCC Culvert in Survey no. 63/2 at

its own cost. The work was to be carried out by M/s. Agamya

Engineering Services LLP. Commissioner, BBMP granted approval to the

said request on 26.07.2017. It was communicated to PP by Chief

Engineer, BBMP‘s letter dated 02.08.2017. Letter reads as under:

―With reference to the above subject and in the letter under

reference, permission sought for the construction of R.C.C. Drain
and R.C.C. box type Culvert for storm water drain flowing in
Survey No. 63/2, Kasavanahalli Village, Varthur Hobli, B.B.M.P.
Limits BANGALORE East Taluq- request made by M/s Agamya
Engineering Services LLP, to construct at their own cost, R.C.C. ‗U‘
type drain measuring 5.40M x 3.0M and two culverts of 12 Meters
R.C.C. Block type, as per the approval and Order by the Hon‘ble
Commissioner, permission given subject to conditions as
below:

1. R.C.C. ‗U‘ type drain measuring and two culverts of 12 Meters

R.C.C. Block type, to be constructed without changing for any
reason Alignment of present storm water drain and original
measures, for any reason whatsoever.

2. Spot where said canal runs being the property of the PALIKE,
Owner of the property has no right, whatsoever in it.

3. Construction of R.C.C. ‗U‘ type drain to be done after taking

Guidance; from the Engineer concerned of the PALIKE.

4. After completion of the works no building to be constructed on

the top/terrace or by the side of R.C.C. ‗U‘ Type drain and
R.C.C. Box Culverts.

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 5. Name plate of/as/B.B.M.P. to be exhibited on the said RCC U
Type drain and R.C.C. Box Culverts.

6. Instructed to clean the same periodically for free flow of rain

water.

7. Palike Officers/Staff reserve the right to conduct spot inspection

at any time, also to take appropriate action, they should not be
obstructed for doing this.

8. Applicant has to bear the entire expenses for the construction of

and repairs and maintenance thereafter.

9. Precautions to be taken at the time of construction, if any type

of accident occurs, Applicant will be directly responsible for the
same. No financial expenditure or relief for the loss/indemnity
will be borne by the Palike.

10. PALIKE resaves the right to cancel the permission, without

giving any reason, at any time, in this regard Applicant cannot
exercise any right.

11. After construction of the said RCC U type drain, it should not
be used for any purpose other than flow of storm water/rain
water.

12. If any occasion arises, to make any type of change during the
execution of the works, prior permission of the MAHANAGARA
PALIKE has to be obtained.

13. Construction of the RCC U type drain and R.C.C. Box Culverts
to be done as per the plan and design/sketch approved by the
MAHANAGARA PALIKE.‖

240. On enquiry made by Shri Kaushlesh Pratap Singh, Regional Officer

and Chairman of Joint Committee and Representative of MoEF&CC, vide

letter dated 08.03.2021, Additional Director, Town Planning, BBMP,

informed vide letter dated 09.03.2021 that permission for construction of

RCC drain was given by Commissioner, BBMP in exercise of power under

Section 288A of KMC Act, 1976. Further permission for construction of

RCC Culvert was given by Commissioner exercising power under Section

288 (1) (c) of KMC Act, 1976. Both these provisions read as under:

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 ―288A. Prohibition of structures or fixtures which cause
obstruction in public streets.- No person shall except with the
written permission of the Commissioner under Section 288 erect
or set up any wall, fence, rail, post, step, booth or other structures
or fixtures in or upon any public street or upon or over any
open channel, well or tank in any street so as to form an
obstruction to, or an encroachment upon or a projection over,
or to occupy any portion of such street, channel, drain, well or
tank.‖

―288. Power to allow certain projections an erections.- (1) The

Commissioner may grant a licence subject to such conditions and
restrictions as he may think fit to the owner or occupier of any
premises.- (c) to construct any step or drain-covering necessary
for access to the premises.‖

241. Having gone through the aforesaid provisions, we find that the said

provisions did not empower Commissioner to grant any such permission.

These provisions are referred illegally and Commissioner has claimed

power therein by sheer misconstruction of these provisions. He exercised

power which never vested in him. It is apparently for reasons other than

bonafide.

242. We called upon the counsel for the respondents including that of

PP to show as to how these provisions empower Commissioner to grant

permission of RCC drain and RCC Culvert on kharab land and that too

for checking the storm water drain to which Shri Pinaki Misra, counsel

for PP said that it is for BBMP and its authority to explain but so far as

PP is concerned, he has proceeded only when an order by statutory

authority was communicated to it. Even Counsel for BBMP could not

explain.

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243. Section 288A prohibits any structures or fixtures in public streets

or upon or over any open channel in well or tank in any street. It has

nothing to do with any construction in a kharab land in respect of Storm

Water Drain flowing water from one lake to another when it is passing

through or over kharab land.

244. Similarly, Section 288 is not applicable for construction of any

―Storm Water Drain‖ but for step or covering necessary for access to the

premises. Therefore, Section 288 (1) and in particular clause (c) is not

applicable at all. It does not appear that Commissioner, BBMP examined

aforesaid provisions before passing order of approval for construction of

RCC drain and RCC Culvert on kharab land in Survey no. 63/2 which

communicated to PP by Chief Engineer‘s letter dated 08.03.2021. This

approval/permission is a nullity in the eyes of law, wholly without

jurisdiction and would not give any validity to the action of PP for the

aforesaid construction.

245. Further, difference in plot area as well as built up area, and,

number of units in the information given in DP and application for grant

of EC when questioned, learned counsel appearing for PP could not

explain; except that sometimes Designer and Architect of the project

makes improvement in the plan. We find it improbable and devoid of any

trace of truth since documents were submitted in two departments

almost simultaneously, then how there could be change in the two

documents and why immediate consistency in information in both the

plans was not attempted. It appears that PP gave information as suited

to it, to different authorities differently. This is further fortified from

some more documents.

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246. Another application was submitted just after a short time i.e. on

15.11.2017. It is the ―Building Plan‖ submitted for sanction to BBMP.

Sanction was accorded on 20.08.2018. Letter was issued by BBMP to PP

on 30.08.2018. PP himself has filed it as annexure 2 at page 436

(English Translation on page 437 to the affidavit dated 05.02.2019 filed

on 07.02.2019). Page 438 shows that sanction was granted only for

Block-1 consisting of 2BF+GF+19UF and part 20UF. The document does

not show particulars of ―built up area‖ either disclosed by PP or

sanctioned by BBMP for Block-1.

247. Then comes documents relating to KSFES. There, PP has

submitted separate applications for Block-1 and Block-2. For Block-1,

application is dated 07.11.2017. Complete application itself is not on

record. In respect of Block-1, copy of bare application without its

enclosures is annexure R-1 at page 518 to reply submitted by

respondent-7 (KSFES). Therefore, what area was disclosed by PP in the

application is not available. However, inspection report dated

04/07.12.2017 of CFO is on record. The said report shows that total

units proposed to be constructed in Block-1 were 238+27 i.e. 265 flats

which comprised of 3 towers A, B and C. Parking in common basements-

1 and 2 and common ground floor was for 391 cars. CFO computed

‗built up area‘ of each floor with reference to the units. He has shown, in

column 9 at page 524, to the total ‗built up area‘ as 59091.85 square

meters.

248. In respect of Block-2, application was submitted by PP on

07.03.2018 which is on page 570 i.e. annexure R-3 to the reply of

respondent-7 (KSFES). Here also complete document i.e. enclosures to

application is not on record. Therefore, details disclosed by PP cannot be

189
discerned therefrom. Here also inspection report of CFO dated

21.03.2018 (annexure R-4 at page 572 to reply of respondent-7) is on

record. Therein, CFO has found that Block-2 comprised of 4 towers i.e.

A, B, C and D. Arrangement for car parking was in common basement,

common ground floor and common first floor and shown for 159, 150 and

148 cars i.e. total 457 cars. Similarly, CFO has noted number of flats as

360, in column 6 of report at page 573, and total ‗built up area‘ in

column 10 at page 575 is given as 64958.15 square meters.

249. From the two reports of CFO, which are on record along with reply

of respondent-7, total built up area of 7 towers in two blocks, comes to

59091.85+64958.15=124050 square meters. Total units i.e. flats comes

to 625 and arrangement of parking for total 848 cars. If built up area of

towers part with only 625 units was 124050 square meters, then for 688

units and other services total area would have been much higher i.e.

169000 and more square meters as shown in DP.

250. Thus it is evident that above figures do not tally with the

information contained in sanctioned DP which talks of 688 units of

residential apartments and arrangements for 313 parking of cars in

Block-1 and 455 in Block-2 i.e. total of 758 cars. Gross built up area

given in DP is 169957.37 square meters.

251. Be that as it may, the fact remains that information recorded by

CFO also does not tally with the information, PP has furnished in

application in Form 1 and Form 1A to SEIAA, Karnataka for grant of EC.

252. Moreover, CFO made inspection and report refers to only 7 towers

of two blocks sought to be constructed and not total construction to be

made by PP on the project site. Therefore, actual built up area obviously

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would much higher than what was mentioned in two inspection reports of

CFO.

253. Again another built up area we find in the documents of BWSSB.

The application submitted to BWSSB is dated 15.06.2018 but therein,

site area shown is 51698.16 square meters and built up area is shown as

171755.37 square meters. The above facts are evident from annexure-3

to the affidavit dated 05.02.2019 (for placing additional documents) filed

by PP on 07.02.2019 which starts form page 426 and NOC is on page

442. The relevant extract of the said NOC has already been quoted

above.

254. Lastly, we find application submitted for grant of ‗Consent for

Establishment‘ which is said to have been filed on 18.01.2018 in Regional

Office, KSPCB. This application is not on record but inspection report

dated 23.02.2018 is on record as annexure R-2 at page 473 to reply of

respondent-6 (KSPCB). Therein, we find that Environmental Officer,

Bengaluru himself has not made any attempt to find out details of site

area, built up area etc. Instead he has proceeded on the information

given by PP that is why, in the column of project details, he has

mentioned that as per site plan, project relates to residential apartment

with 655 flats and club house i.e. 265 units in Block-1 and 390 units in

Block-2 having ‗built up area‘ of 93423.70 square meters. Then, he has

mentioned about number of parking of cars as 877. Other details given

are:

i.) Total site area-51718.83 square meters;

ii.) Kharab land area-1335.92 square meters;
iii.) Ground coverage area-12147.75 square meters;
iv.) Landscape area-21667.7 square meters;
v.) Civic amenities-2524.18 square meters;

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 vi.) Parks and Open Spaces-4833.73 square meters and
vii.) Area left for other utilities-9209.55 square meters.

255. Environmental Officer has taken built up area and number of units

from site plan. But here also, we find that Environmental Officer has

taken built up area only as 93423.70 square meters. We don‘t find as to

where from this area has been taken for the reasons that even in DP, net

FAR area has been mentioned as 94705.36 square meters but

Environmental Officer has mentioned lesser area than that.

256. Further, when we go by the entire FAR and non-FAR i.e. gross built

up area as per DP and from NOC issued by BWSSB; it is evident that

total built up area therein is more than 1,50,000 square meters.

257. Learned counsel for PP though endeavored to resist but could not

dispute that for the purpose of EC, there is no difference between FAR

and non-FAR area and entire ―built up area‖ in accordance with Item 8

Schedule of EC 2006 as amended has to be taken into consideration to

determine the category of project and the Competent Authority for grant

of EC whether would be SEIAA or MoEF&CC.

258. The issue of FAR and non-Far in environmental matters has

already been settled by Apex Court in Goel Ganga Developers India

Private Limited (supra). Therein Appeal was taken to Supreme Court

from judgment of Tribunal in OA No. 184/2015 (WZ), Tanaji Balasaheb

Gambhire Vs. Union of India decided on 27.09.2016. PP-M/s. Goel

Ganga Developers India Private Limited raised construction in violation of

Environmental Clearance, Municipal laws and Environmental laws.

Complainant/applicant-Tanaji Balasaheb Gambhire prayed that illegal

construction should be demolished. Applicant therein, succeeded and

Tribunal vide judgment dated 27.09.2016 allowed OA No. 184/2015 and

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directed that M/s. Goel Ganga Developers India Private Limited shall pay

environmental compensation of Rs. 100 crores or 5% of the total cost of

project to be assessed by SEAC, whichever is less, for restoration and

restitution of environment damage and degradation caused by it, by

carrying out construction activities without necessary prior EC. Further,

PP was saddled with the penalty of Rs. 5 crores for contravening

mandatory provisions of environmental laws in carrying out construction

activities, exceeding limit of EC. Tribunal also imposed fine of Rs. 5 Lakh

upon officers of Pune Municipal Corporation and directed Commissioner

to take appropriate action against erring officers. Chief Secretary of State

of Maharashtra was directed to take notice of conduct of the officers who

misled Department of Environment in regard to interpretation of FSI and

built up area.

259. PP-M/s. Goel Ganga Developers India Private Limited filed Civil

Appeal No. 10854 of 2016. Another Civil Appeal No. 10901 of 2016 was

filed by Pune Municipal Corporation. In the meantime, PP had also filed

Review Application No. 35/2016 before Tribunal which was rejected on

08.01.2018, hence he sought amendment in the appeal before Supreme

Court which was allowed. A third Appeal being Diary No. 3911 of 2018

was filed by Applicant-Tanaji Balasaheb Gambhire challenging Tribunal‘s

judgment dated 27.09.2016 and order dated 08.01.2018 passed on

Review Application, since relief for demolition of illegal structure was not

granted. He also wanted enhancement of environmental compensation.

The total plot area was 79,100 square meters but PP claimed built up

area as 57658.42 square meters comprising of 12 buildings with stilt,

basement+11 floors for 552 flats, 50 shops and 34 offices. PP therein

contended that ―built up area‖ is synonymous with ―Floor Space Index‖ or

―FSI‖. It said that constructed area which is exempted area or is not an

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FSI, was not a part of built up area. Per-contra, on behalf of MoEF&CC,

Additional Solicitor General argued that ‗built up area‘ will cover all

constructed area and concept of FSI and non-FSI area is alien to

environmental laws. Reliance was placed by PP on Rule 2.13 of

Development Control Rules for Pune Municipal Corporation, 1982

wherein ‗built up area‘ was defined as ‗area covered immediately above

the plinth level by the building or external area of any upper floor

whichever is more excepting the areas covered by Rule no. 15.4.2‘. The

term ―Floor Area Ratio‖ (FAR) was defined in Rule 2.39 stating that the

quotient obtained by dividing total covered area (plinth area) on all floors

excluding exempted areas as given in Rule 15.4.2 by the area of the plot.

A note appended to Rule 2.39 said that FAR is synonymous with FSI.

Then in Rule 15.4.2, certain areas were described which would not be

included in covered area or FAR and built up area. These exempted area

included basement or cellar space under a building constructed on stilts

and used as parking space; air-conditioning plant rooms used as

accessory to the principal use; electric cabin or sub-station; watchman‘s

booth; pump house; garage shaft, space required for location of fire

hydrants, electric fittings and water tanks; projections as specifically

exempted under these rules; stair case room and/or lift rooms above the

top most storey, architectural features, chimneys, elevated tanks of

dimensions as permissible under rules etc. On behalf of MoEF&CC and

applicant-Tanaji Balasaheb Gambhire, reliance was placed on EIA 2006

stating that for the purpose of EC, it is EIA 2006 which will be relevant

and not Rules of Local body like Municipal Corporation. Accepting the

stand taken by MoEF&CC and applicant, Supreme Court said:

“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

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 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.”

(Emphasis added)

260. Thereafter, Supreme Court also referred to the Notification dated

04.04.2011, whereby column 5 of Item 8(a) was substituted which we

have already mentioned above. Here substituted provision defines built

up area as ―the built up or covered area on all the floors put together

including basement(s) and other service areas, which are proposed in the

building/construction projects‖. Referring to this notification dated

04.04.2011, Supreme Court said this notification clearly defines ‗built up

area‘ as all constructed area including basement and service areas

without any exception. On behalf of PP, reliance was placed on Office

Memorandum dated 07.07.2017 issued by Dr. Ashish Kumar, Joint

Director, MoEF&CC purporting to be a clarification of amendment

notification dated 04.04.2011 stating that this amendment may be

prospective but deprecating this Office Memorandum, Supreme Court

said that EIA 2006 is a statutory notification issued in terms of Rule 5(3)

of EP Rules, 1986 and similar is the position with respect to notification

dated 04.04.2011. Such statutory notifications could not have been

195
narrowed or settled down by Office Memorandum or a letter issued by

Joint Director without following procedure in which notifications dated

1409.2006 and 04.04.2011 were issued, Hence deprecating the same, in

para 22 of the judgment, Supreme Court in para 23 quashed the said

Office Memorandum.

261. Thus, in the above facts, we are clear in our mind that in the

present case, firstly, PP has given different information to different

authorities in regard of ‗built up area‘ and thereby has tinkered with the

competence of the authority who would have considered issue of grant of

EC in this case. From two documents it is clear that built up area was

more than 150000 square meters i.e. sanctioned DP issued by BDA and

NOC issued by BWSSB. Further in the documents filed before Fire

Department and also in the EC application, PP has referred to only ―built

up area‖ in terms of net-FAR as per laws of local bodies and did not

comply with requirement of item 8 of EIA 2006 as amended by

notification dated 04.04.2011 and thereafter. Since PP himself has

disclosed built up area of more than 150000 square meters before BDA

for sanction of DP which was the first document which it submitted

before a statutory authority and then before BWSSB, it is clear that PP

mentioned not only wrong facts with regard to ‗built up area‘ before

SEIAA while submitting application in Form 1 and Form 1A but also

reduced area so as to result in change of Competent Authority for grant

of EC in as much as where built up area is more than 150000 square

meters, Competent Authority to grant EC is MoEF&CC and procedure is

also different. Therefore, the First aspect of question 1 is returned

against PP. Authority i.e. SEIAA Karnataka, in this case was not

competent to grant EC.

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262. Now, we come to second aspect i.e. non-disclosure of correct

information/concealment of other relevant facts in the application

submitted by PP for grant of EC. In this regard, information relating to

proximity of project site with wetland and wetland area, flora-fauna and

vegetation in the attending and abutting area, position of

Rajakaluves/drains etc. is relevant.

263. In the additional affidavit dated 19.11.2019, applicant has given

details of various ecologically and otherwise sensitive areas, near the

project site and the distance thereof as under:

Sl. Area Distance (in km)

No.
1 Kasavanahalli Lake 0.4 km
2 Ambalipura Lake 0.65 km
3 Ibbalur Forest Area 0.8 km
4 Bellandur Lake 2.00 km
5 Dodakannali Lake 2.46 km
6 Hosa Lake 2.73 km
7 Agara Lake 3 km
8 Varthur Lake 7.12 km

264. It is also said in para 14 on page 720 that Ibbalur Forest Area is

being used as a firing range by military camp and owned by Ministry of

Defence, Government of India. It is just 800 meters away from the

boundary from the project site. All this information ought to have been

disclosed by PP in view of requirement of para 8(vi), which he failed.

265. In respect to the above facts stated by appellant/applicant, we do

not find anything on record to show any incorrect statement and

incorrect facts stated in Additional Affidavit and, therefore, these facts

remain uncontroverted.

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266. After the judgment was reserved, PP has filed two applications

along with certain additional documents. Normally after reserving

judgment, no such application ought to have been entertained but to do

compete justice in the matter we have examined those documents also.

In the first application filed, an order passed by Real Estate Regulatory

Authority rejecting complaint made against PP in respect to the project in

dispute has been filed. And by another application which has been field

on 26.07.2021, PP has filed certain Google maps of different period of the

years-1874, 1904, 2002, 2005, 2010, 2015, 2020 and 2021. So far as

Real Estate Regulatory Authority proceedings are concerned, the same

have no relevance for our purpose and so far as the maps are concerned,

the same demonstrate and fortify the fact that the project site is abutting

―Kaikondarahalli Lake‖ and upto the periphery, we find leveling of

excavated soil which clearly damming and raising the ground level upto

periphery of lake.

267. It is not disputed before us, by the parties, that two lakes namely

―Kaikondarahalli Lake‖ and ―Kasavanahalli Lake‖ are though not notified

under Wetland Rules, 2010 and 2017 since procedure of notification has

not been completed till date but both are mentioned in National Wetland

Inventory Assessment and among 201503 wetlands identified in respect

whereof Supreme Court in M.K. Balakrishnan and Ors. v. Union of

India and Ors. (supra) has said that Rule 4 of Rules 2010 will apply.

Therefore, it is not in dispute that the restrictions contained in Rule 4 of

Rules 2010 which are substituted later by Rules 2017, shall apply to

both the lakes.

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Flora and Fauna:

268. Appellant/applicant-H.P. Ranjana has filled an additional affidavit

dated 19.11.2019 stating that PP has concealed information regarding

presence of ecologically sensitive Acacia forest, sensitive species of flora

and fauna in the proximity of project land as also non-disclosure of water

bodies and forest within 15 kms from the project site. In this regard, it is

stated that as per survey conducted by a volunteer-led non-Government

Organization-Mahadevpura Parisara Samrakshane Mattu Abhivrudhi

Samiti and the United Way of Bengaluru in regard of ongoing flora and

fauna at ―Kaikondarahalli Lake‖, it has been found that around 43

species of birds, 26 species of reptiles and 3,000 plants comprising at

least 33 varieties are present in that area. Survey was conducted

sometimes in October, 2013. Some of the birds spotted were White-

browed Wagtail, Greater Coucal, Red-wattled Lapwing, Pied Kingfisher.

Exotic flora spotted include ‗Jali Maa‘, Nerale Hannu‘, Singapore Cherry,

Pink Lapacho and Wild Date Palm. A Google earth image showing Acacia

trees within the lake area and project land abutting lake, has also been

annexed as annexure A3 to the aforesaid affidavit. We find nothing on

record submitted by PP to contradict the above facts stated in the said

affidavit.

269. With regard to the topography and presence of wetland and storm

water drains/Rajakaluves and surrounding areas, we find information in

the following documents:

(a) According to DP, sanctioned by BDA, the project land has total

area of 51698.16 square meters which included Kharab area

1315.21 square meters and site area available for development to

PP was (51698.16-1315.21) 50382.95 square meters, and is

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 admittedly is abutting to ―Kaikondarahalli Lake‖. Site‘s boundary

touches the Revenue area of the lake. The map also shows a

nalla/Kharab passing almost in middle of the project site and from

equal distance of the buildings proposed to be constructed as

Block-1 and Block-2 from that nalla/kharab. The distance of 75

meters shown as buffer line has been taken from the water

periphery of lake to the buildings outer layer in the disputed site

called as ‗Building Line‘. Sanctioned DP also shows two Park and

Open Space, Area 1687.15 square meters in part 1 and 3406.72

square meters in part 2, just abutting the lake‘s water periphery

touching almost the entire boundary of the lake on southern side

with project site. The nalla‘s/buffer zone is also shown to be

crossed by a fire drive way in the middle which is 12 meters wide.

This map does not disclose any other Rajakaluves/drains passing

through disputed site or near thereto.

(b) At Sl. no. 1.22, under clause (II)-Activity of Appendix 1, Form 1, PP

has disclosed as under:

Sl. Information/checklist Yes Details thereof (with

No. confirmation /No approximate quantities/rates,
wherever possible) with
source of information on data
1.22 Stream crossings? Yes A primary nala connecting to
Kaikodrahalli lake is crossing
across the project site. 50 m
buffer on both side are provided
as per the NGT specifications.

(c) Similarly, at Sl. no. 2, under clause (III)-Environment Sensitivity,

Appendix 1, Form 1, with regard to situation of lake, PP has given

following information:

Sl. Information/checklist Yes/ Details thereof (with

No. confirmation No approximate
quantities/rates,

200
 wherever possible) with
source of information on
data
2 Areas which are Yes Kaikondrahalli lake exist
important or sensitive at a distance of 75 m
for ecological reasons-
Wetlands, watercourses Harlur/‖Kasavanahalli
or other water bodies, Lake‖ at a distance of
coastal zone, biospheres, 0.800KM
mountains, forests.

(d) When we questioned learned counsel for PP that lake is abutting

the project site and not at a distance of 75 meters, he could not

dispute this fact but said that PP intended to mean that from the

outer surface of buildings, distance was 75 meters. The explanation

cannot be accepted for the reason that a fact mentioned in a

document without any ambiguity could not be permitted to be

explained orally and that too in a totally different or reverse

manner. When something is clear from record no subsequent

explanation, which is not consistent with the facts mentioned in

the documents, can be accepted or entertained.

Location details given in the inspection report of CFO (KSFES):

(e) Surrounding properties in column 10 of the report dated

04/07.12.2017 mentioned location of lake as under:

A. General Building requirements:

10. Surrounding Properties

Front (East) : Vacant land

Rear (West) : 18.00 mtrs wide Road & 12.00

mtrs. wide dead end Road

Side (North) : Lake & vacant land

Side (South) : Residential Buildings

Same position is mentioned in report dated 20.03.2018.

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Inspection report of Environmental Officer in respect to grant of
Consent for Establishment by KSPCB:

(f) Location details had been given in the said report on page 475 of

the record of Appeal which we have quoted above. Report clearly

shows that ―Kaikondarahalli Lake‖ is adjacent to the project

boundary towards north direction. Kasavanahalli Lake is located

at a distance of about 393 meters towards south and not 800

meters as stated by PP in application submitted to SEIAA,

Karnataka for grant of EC. Inspection report also shows presence

of stream/nalla passing in the middle of the proposed project site

flowing from Kaikondarahalli Lake‖ to Kasavanahalli Lake; two

nalla/drains towards south of proposed site located in Survey no.

61/1, runs parallel to the proposed project site. The distance

between building line of Block-1 to the nalla is about 23 meters

and to the project boundary is about 16 meters. Second nalla is

located in Survey no. 57 towards south east side and runs parallel

to proposed project site. The distance between building line of

Block-2 to said nalla is about 29 meters and to project boundary is

about 19.19 meters.

(g) In the application Form 1, with regard to these two nalls, nothing

has been said by PP.

(h) First Joint Committee‘s Report dated 18.09.2019 said about

location of ―Kaikondarahalli Lake‖, as under:

“Kaikondarahalli Lake is having total area of 48 acres 23

guntas, perimeter of about 2.17 km, located on Sarjapura
Road close to Kaikondarahalli Village. The lake area has two
survey numbers i.e. 18 acres 18 guntas comes under the
Survey No. 8 of Kaikondarahalli village and 30 acres of 5
guntas comes under Survey no. 70 of Kasavanahalli village
limits.”

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(i) Further, report said that Survey nos. 39, 40, 62, 63, 68, 69, 71, 72

and 73 are adjoining ―Kasavanahalli Lake‖ and ―Kaikondarahalli

Lake‖. Instead Survey no. 62 and 63 of proposed site are in buffer

area of ―Kaikondarahalli Lake‖.

(j) Second Joint Committee‘s Report dated 29.06.2020 mentioned

location of lake and project site and said:

 North side: Kaikondarahalli Lake

 South side: M/s. Sriram Chirping Apartment & Residential
Buildings
 East side: Vacant Land
 West side: Road and Residential Layout.

(k) With respect to ―Kaikondarahalli Lake‖ and its feeder drains,

Second Joint Committee‘s report said:

―2.1 Kaikondarahalli Lake

Kaikondarahalli Lake is situated adjacent to this project

at north, having total area of 48 Acres 23 Guntas, perimeter
of 2.17 km, located on Sarjapura Road close to
Kaikondarahalli Village. The lake area has two survey
numbers i.e. 18 Acres 18 Guntas comes under Sy. No. 8 of
Kaikondarahalli village and 30 Acres and 5 Guntas comes
under Sy. No. 70 of Kasavanahalli village limits. There are
three main feeder drains to the Kaikondarahalli Lake,
one on south Eastern side, second on Western side and
third one towards Southern Side of the lake.‖

(l) In para 5.0, details of primary/secondary/tertiary nallas has been

given by this Second Joint Committee. There is also a map

showing a drain passing through project site almost in the middle

leading to ―Kaikondarahalli Lake‖. Besides, there are also drains

adjacent to project site. Committee, however, has categorized these

drains in its own way and its observations are:

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 ―Secondary Drain

There are two streams originates from Kasavanahalli Lake

and flow towards Kaikondarahalli Lake. Out of two streams,
one stream flow inside the Sy. Nos. 51, 57 and 63, and the
second stream flow in Sy. Nos. 31, 47, 48, 46, 58 & 59 and
joins in Sy. Nos. 57, and further flow in Sy. No. 63.

The said streams flow in Kharab area of respective survey

numbers and both streams joins together in Sy. No. 57 and
further flow in Sy. No. 63, ultimately joining into
Kaikondarahalli Lake. The said drain flowing in sy. No. 63 to
be considered as Secondary Drain.
Tertiary Drain

There is one more single drain on Southern East side of the

project originating from Sy. No. 61, pass through Sy. No. 43,
35 and 37. Since, this single line drains runs in various
survey numbers, the same is to be considered as Tertiary
Drain.

Pillu Kaluve

A single line drain is spotted (Agricultural drain or feeder

channel) in Sy. Nos. 56 & 57, adjacent to Sy. No. 63 the single
line drain ends on Secondary drain. Since the single line
drain terminates at Secondary drain; the same is to be
considered as Pillu Kaluve or a Lead drain for which buffer zone
is not applicable.‖

(m) In para 7.1 of report, Second Joint Committee has discussed

compliance of actual buffer zone by PP and in this context, it has

said that there is no Primary drain in the area, there is a Secondary

drain which is about 51.20 meters to 54.8 meters from Block-1

building line and 59.40 meters from Block-2 building line. Then, it

says that there is a Storm Water Drain (which it has placed in the

category of Tertiary drain), passing at Survey no. 61 of southern

side of project site. Further, as per village map, it also says that in

DP approved by BDA and Building Plan approved by BBMP, this

nalla/Storm Water Drain is shown outside the boundary wall of

project site. Mentioning its distance from Block-1 building as 26.40

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 meters, Second Joint Committee observed that it complies ‗buffer

zone‘ as per Supreme Court judgment in Mantri Techzone Private

Limited v. Forward Foundation & Ors. (supra). Interestingly in

DP Plan, what has been said to be Secondary drain by Second Joint

Committee Report is mentioned as nalla/kharab and this is also

admitted by PP in its reply para 3(ii) that one Primary Rajakaluve

flowing through portion of survey no. 63/2, specified as kharab in

all Revenue Records yet Second Joint Committee has treated it a

Secondary drain without giving any reason therefor.

270. In the application submitted by PP, he has not stated that he

proposed any construction in buffer area of lake or drains but Second

Joint Committee‘s Report mentions about constructions in the buffer

zone of lakes and drains and has justified the same as permissible by

referring to Clauses 4.12.1, 4.12.2 (i) (ii) of RMP-2015. We have already

quoted relevant extract in earlier part of judgment in para 58. The

construction prohibited by Wetland Rules, 2010 or 2017 could not have

been justified by referring to RMP-2015. Environmental laws would

prevail over provisional law and it has also been held by Supreme Court

in Mantri Techzone Private Limited v. Forward Foundation & Ors.

(supra).

271. In the Third Joint Committee‘s Report, we find that Committee has

failed to give its own findings in respect of the site and analysis of

documents. Mainly it has relied on information given by different

authorities and with regard to wetlands, it has laboured more to observe

that ―Kaikondarahalli Lake‖ is not notified under Wetland Rules, 2010

and Wetland Rules, 2017 and in any case, from lake to building line at

the best 50 meters buffer was to be observed which has been maintained

205
by PP, ignoring direction of Supreme Court in M.K. Balakrishna (supra)

applying restrictions under Rule 4 of Wetland, 2010 to all 2 lacs and

more lakes find place in ―National Wetland Inventory and Assessment‖-

Atlas.

272. Further, it has tried to reconcile between First and Second Joint

Committee‘s Reports, and after referring to findings of Second Joint

Committee Report that there is a nalla within the project area which

connects Kasavanahalli tank to Kaikondarahalli tank, it has observed

that the area of lake as per Revenue Record, is only 48 acres and 23

guntas which does not include project land but has ignored to consider

the concept of catchment area. It has said that construction of building

i.e. building line is beyond 75 meters from lake periphery. It has further

said that firstly building is not being constructed in buffer zone of 75

meters from the lake periphery and secondly constructions made with

regard to drive way, ramp etc., were permitted. With regard to

construction of U-type RCC box drain and RCC box culvert in kharab

land, report has referred to letter dated 02.08.2017 issued by Chief

Engineer communicating approval of Commissioner of BBMP under

Section 288A and 288(1)(C) of KMC Act, 1976.

273. Third Joint Committee, while measuring buffer zone has taken

demarcation line from ‗building line‘ i.e. the plinth area of the towers

sought to be constructed by PP and has conveniently ignored other

admitted proposed constructions. The terms ‗building line‘ has been

defined in Section 12, Explanation of KTCP Act, 1961 and reads as

under:

―Explanation:
(i) ―Building Line‖ means the line up to which the plinth of a
building adjoining a street may lawfully extend and includes the
lines prescribed, if any, in any scheme;‖

206
274. The above provision shows that the term ‗building line‘ is for some

other purposes and not to be taken as a point of measurement in a

construction project involving different type of constructions, when we

have to find out distance from buffer line to protect a water body. No

such restrictive view can be taken or applied. The Committee completely

misdirected itself by taking buffer zone distance with building line

ignoring the project site and various other constructions, PP has

proposed therein.

275. At this stage, we also place on record that some construction in

buffer zones, at least stand admitted even by these reports, but the same

have been ignored on irrelevant reasons despite that the same are

violating ex-facie restrictions of ‗no construction zone‘ in buffer area.

276. The application submitted by PP for grant of EC does not mention

all these facts, though, they were of importance for the purpose of

assessment of construction project in respect of the Assessment of

Impact of construction project on environment which is basic objective of

grant of EC by SEIAA or MoEF&CC, as the case may be. It thus cannot

be doubted that all information was not given by PP, and some

information was incorrect also.

277. In EIA 2006, Clause 7(i), Stage (1) screening says that scrutiny of

application, seeking prior EC shall be considered by Competent Authority

for determining whether or not the project or activity requires further

environmental studies etc. depending on the nature and location

specificity of the project. The location and surrounding area is, therefore,

of utmost importance and it was incumbent upon PP to disclose all

correct facts in this regard.

207
278. Apparently in regard of position of ―Kaikondarahalli Lake‖, PP in

the application, has given wrong information that lake is at a distance of

75 meters and ―Kasavanahalli Lake‖ is at a distance of 0.8 km, though, it

is evident from record that ―Kaikondarahalli Lake‖ abuts the project site

itself and sufficient part of adjoining area, PP has proposed in its DP to be

used as Park and Open Space. ―Kasavanahalli Lake‖ is at a distance of

about 390 meters.

279. At Sl. No. 3, under clause (III)-Environmental Sensitivity of

Appendix 1, Form 1, information with regard to flora and fauna was also

enquired, but PP has replied that it is not applicable. Applicant in OA-2

has specifically stated that the lake has peculiar type of flora, fauna and

vegetation around it and this fact has been reiterated in subsequent

application dated 05.02.2019 filed seeking permission to place additional

documents on record. To contradict it, nothing has been placed on

record by PP.

280. Further, use of adjoining area to lake, which was admittedly buffer

zone and had to be treated as ‗green belt‘, allowed as a part of project,

permitting PP to develop it as Park and Open Space, was clearly

impermissible particularly in view of Tribunal‘s judgment in Forward

Foundation & Ors. (supra), dated 04.05.2016, wherein para 63,

Tribunal said :

“The entire green belt created under the directions of this Tribunal
should not to be considered as part of green belt of the project as
part of EC condition and will be over and above the green belt as
indicated in the EC.”

281. Therefore, green belt which was to be maintained by PP has to be

other than the area of buffer zone. In the case of wetland buffer zone has

to be treated as green belt around the lake but not as a part of the

208
project. Therefore, development of park in the area adjoining lake was

illegal and this fact was neither disclosed by PP to SEIAA, Karnataka, nor

it has been examined by them. Third Joint Committee has preferred to

rely on RMP-2015 ignoring the law that environmental laws shall prevail

over provisional laws. Wetland Rules had to be followed. This is a patent

illegality and in violation of Environmental laws including Wetland Rules.

282. It has been pointed out to us that the buffer zone prescribed under

in RMP-2015 was modified by Tribunal in its judgment in Forward

Foundation & Ors. (supra) but this part of judgment dated 04.05.2016

has been set aside by Supreme Court in Mantri Techzone Private

Limited v. Forward Foundation & Ors. (supra) and, therefore,

distance of buffer zone has to be followed as per RMP-2015. For the

purpose of present cases, we have not adhered to buffer zone distance as

given in judgment of Tribunal in Forward Foundation & Ors. (supra)

but while considering matter on merits, we have looked into the distance

of buffer zone as mentioned in RMP-2015. It is clear that several

constructions like drive way ramp, fire drive way etc. are in buffer zone,

clearly in violation of condition of ‗No Construction Zone‘ i.e. buffer zone.

These aspects having not been disclosed by PP in application for grant of

EC nor have been examined by SEIAA, Karnataka while graining EC,

therefore, we have no manner of doubt that SEIAA, Karnataka has

granted EC without proper examination of relevant facts and aspects and

without verifying facts from other documents.

283. We also find strange that construction over kharab i.e. Primary

Drain passing through project site (Second and Third Committee have

treated as Secondary drain) has been justified. Admittedly, it was a

kharab land and it is also admitted that no construction is permitted on

209
kharab. However, both these Committees have relied on the order of

Chief Engineer, BBMP stating that Commissioner in exercise of powers

under Sections 288A and 288 of KMC Act, 1976 has permitted, without

examining whether those provisions are applicable and could have been

availed for the purpose of the alleged permission. The patent violation in

this regard has been sought to be validated.

284. We also find that the order permitting construction of RCC drain

and RCC box type drain for Storm Water Drain flowing in Survey no.

63/2; order is said to have been passed by Commissioner communicated

to Chief Engineer on 02.08.2017, when matter was not even brought

before Authorities dealing with environmental matters and with respect to

construction over a drain carrying rain water from one lake to another;

there was a prohibition under Wetland Rules and same could not have

been superseded by any local body or authority under local laws.

Supreme Court in Mantri Techzone Private Limited v. Forward

Foundation & Ors. (supra) has said that Central Enactment relating to

environment comes under Entry 30 of Schedule 7, List 1 and will have

over riding effect over State Legislation. The rules relating to wetland

having been framed under EP Act, 1986 read with EP Rules, 1986

obviously over ride Provincial legislation. RMP-2015, at the best, a

delegated legislative exercise under State law, could not have prevailed

over Parliamentary law. Any action by an authority under State Act

contrary to such Central law is patently illegal and without jurisdiction.

285. Even otherwise, we find that Section 288A and 288(1)(c) of KMC

Act, 1976 are not applicable. Both the provisions have been quoted

above. Section 288A says that no person shall erect or set up any wall,

fence, rail, post, step, booth or other structures or fixtures in or upon any

210
public street or upon or over any open channel, well or tank in any street

so as to form an obstruction to, or an encroachment etc. Therefore,

anything which would cause an obstruction in public street, is prohibited

by Section 288A but therein an exception that with the permission of

Commissioner, the said restriction can be overlooked. It is not a case of

anything to be done with public street in the project in dispute or lake,

therefore, Section 288A ex-facie has no application in this case.

Similarly, Section 288 permits Commissioner to grant license when he

finds that an owner or occupier of any premises needs to construct any

step or drain-covering necessary for access to the premises. Again here is

not a case applicable to the facts of the present matter. Storm Water

Drain connecting two lakes flowing water from one to another was

passing through project site almost in the middle. It could not have been

disturbed, altered, varied and no construction within buffer zone thereof

could have been made by PP. This aspect has been considered in wholly

illegal and twisted manner. PP started construction of the drain, clearly

acted illegally and unfortunately, SEIAA, Karnataka having not looked

into this aspect of matter though evident from record, has also failed to

apply mind. Such permission was obtained by PP in August 2017 and

application was submitted to SEIAA, Karnataka on 14.10.2017 and EC

was issued on 10.01.2018 still SEIAA, Karnataka has not looked into this

illegality which itself would have justified rejection of the application. We

answer second aspect of First question against PP.

286. Second question is about construction whether commenced by PP

on the project site before obtaining permission/clearance.

287. On this aspect, in the Appeal filed on 09.04.2018, it is specific case

of appellant that PP has started construction at the project without

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sanctioned Building Plan, consent under Section 25 of Water Act, 1974

and thus, violated conditions of EC. In support thereof, it has filed,

annexure A6 page 136-147, photographs, showing construction on the

project site. We have gone through the said photographs and find that

not only construction is clearly visible from the photographs but what is

disturbing is that excavated soil has been dumped in the water on the

periphery of the lake. Even inside the lake, we find dumping of excavated

soil. In other words, there is reclamation of some part of the lake. Some

vegetation in the surrounding area of the lake has also been uprooted.

Responding to these averments, PP, in para 42 to 45 at page 189 of its

reply has said as under:

―42 to 45 The contents of para 42 to 45 are denied as false and

incorrect. It is denied that any ad hoc or for that matter any
construction is taking place at the site. The contents of the
preliminary submissions and objections are reiterated and relied
upon in response to the corresponding paragraph. The plaint is
trying to paint a picture that construction activities are being
undertaken without a valid consent being obtained under Section
25 of the Water Act or without the building plan. The appellant is
making false assertions to prejudice the mind of this Hon‘ble
Tribunal and strict action must be initiated against the Appellant
in order to ensure that such false and fabulous publicity seeking
Appeals are not filed. It is submitted that the Respondent no. 11
has applied for the necessary consent under Section 25 of Water
Act as well as the section plans and undertake to commence a
construction work upon obtaining all necessary approvals from the
secretary authorities. It is reiterated that the Appellant is relying
upon the photographs to falsely show construction activity,
whereas, the correct fact is that only preparatory work towards
contouring the landscaping of green belt so as to derive benefit
of the upcoming monsoon has taken place. It is reiterated that
Answering respondent is not in violation of any law. A true copy of
the Application seeking consent under Section 25 of the Water
(Prevention and Control of Pollution) Act as Annexure R-4.‖

288. Besides PP has also constructed a model flat area 2500 square feet

and this fact is admitted by PP as well as has also been noticed by

Committees appointed by the Tribunal. PP also had started

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concretization of soft water drain taking advantage of the alleged

permission obtained from Commissioner, BBMP in pursuant to Chief

Engineer‘s letter dated 02.08.2017. All these constructions commenced

before grant of EC. KSPCB officer in his inspection dated 5.2.2018 found

these constructions.

289. Thus, construction activities which are evident from photographs

have been admitted but sought to explain that it is only preparatory work

towards contouring and landscaping so as to derive benefit of upcoming

Monsoon. Same stand was taken during submissions by Shri Pinaki

Mishra, learned counsel for PP. However, we are not satisfied with this

explanation also. ‗Construction‘ involves contouring and leveling of land

etc. also. This has been held by Tribunal in Forward Foundation &

Ors. (supra). It is evident and admitted that consent was not available

with PP in April 2018 or earlier thereto. PP‘s case is that it has applied

for the same but that does not mean that he was authorized to proceed

with construction on the land in dispute. Therefore, it is also evident

that PP has violated provisions of EIA 2006, terms of EC and acted

illegally by going on with the construction activities on the project site.

290. Coming to another angle involved and evident from the pleadings of

OA-2, we find that Google maps and other photographs of project site and

lake area show that construction on the site, abutting green vegetation

surrounding lake and also there is encroachment on the periphery of the

lake i.e. buffer zone by dumping excavated clay or the soil used for

leveling etc. At this stage, we may also point out that restrictions under

Rules 2017 are applicable not only for the wetland but Zone of Influence

which has to be ascertained by Wetland Authorities constituted under

Rules 2017. We are informed that Karnataka State Wetland Authority

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has been constituted vide notification dated 13.03.2018 and similarly,

National Wetland Authority has been constituted. The ‗Zone of Influence‘

as the term suggest cannot be located giving a fixed universal distance

applicable in all the cases like buffer zone described by local body in Bye-

laws. On the contrary, it has to be ascertained looking to the nature of

the wetland, its surrounding, its flora-fauna and other specific kind of

activities mainly related to wetland or its surroundings. In this case, it

was incumbent upon the Competent Authority before granting EC to

examine Rules 2017 and in particular ‗Zone of Influence‘, since here is a

case where project site was abutting a lake which was connected by a

Storm Water Drain with another lake. Protection of wetland and its Zone

of Influence ought to have been a matter of prime importance for the

Statutory Body and Regulator constituted for protection of environment.

Time again, Courts have stressed upon more responsible and careful

function of Statutory Authorities/Regulators upon whom responsibility of

protection of environment has been conferred but unfortunately, these

authorities and bodies are not justifying heavy responsibility and

confidence conferred and reposed upon them by Statute. Instead

experience show that working and functioning of these bodies are

unmindful, callous and careless which is causing more harm to

environment.

291. In this case, a wetland/water body and an attempt to damage it, by

allowing construction in a site abutting to wetland/water body is an

issue. Basically, efforts of appellant/applicant is to protect wetland/water

body.

292. We know and can take judicial cognizance of the fact that entire

country is facing a tremendous scarcity of drinking and potable water

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almost everywhere and, in fact, it is a global phenomenon. It is this

reason which required Regulators/Statutory Authorities to act

responsibly for protection of environment and ecology and in particular,

wetland/water bodies. They are expected to function in a more

responsible and accountable manner and deeper study ought to have

been made, before allowing any construction activities in vicinity of a

wetland/water body, more so when project site is abutting the wetland

itself.

293. Importance of water no one can deny.

294. It cannot be doubted that water though cover three-fourth of earth,

still drinking and potable water is in great scarcity. Manmade ventures

are the basic cause for this situation. Protection of wetland assumed

international importance at very late stage. However, serious concern at

global level is writ large from the fact that in 1991, Convention in Ramsar

was held only to discuss protection of wetland. Some important wetlands

across the world were identified therein. Signatory countries vowed to

protect wetland by taking all necessary measures including stringent

actions.

295. This is a matter of common knowledge that people residing in

urban areas had turned cities into jungles of concrete. Nature has lost

its place, healthy and clean environment has been compromised in the

name of development. The consequences are air pollution, scarcity of

drinking water, extreme heat and cold, lack of raining etc. Earlier‘s

comfortable life in such cities has become a nightmare. Resourceful

people are now resorting to other areas on the outskirt or near such cities

where they can enjoy proximity with nature. This attempt or desire is

nothing but costing heavy to nature. It is a concerted effort by greedy

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elite class to cause destruction of nature in un-probed areas, which have

remained untouched till date, but now are being frequently occupied by

them.

296. These constructions near water bodies or forest areas etc. are not

as a necessity to provide shelter to homeless needy people or development

to economy in general but virtually a part of luxury life for those who can

afford. The elite class and its greed, in the name of development, has

already destroyed cities and now moving towards the areas, rich in

natural flora and fauna including forests, lakes, rivers, streams i.e.,

different type to water bodies and wetlands. In the name of stay in the lap

of nature, in reality they are causing damage and destructing nature.

297. In fact, commercial or residential construction projects do not need

vicinity of wetlands or water bodies etc., as a necessity but

Promoters/PPs/Developers normally choose such sites so as to increase

salability and commercial value of their projects/constructions.

298. Various statutory authorities which were constituted to serve as a

watchdog for protection of these places, rich in natural flora and fauna,

are not very sincere and serious in protection but working only

technically. They are liberal in allowing these activities instead of

adopting strict and stringent measures necessary for protection. We can

see destruction of Aravalli Hills in National Capital Delhi itself, and

disappearance of several small chains of hills in many States. When we

come to the garden city of Bengaluru itself, the facts have already been

noted that in the past there were hundreds of lakes in the city which are

now reduced to just two figures. Most of the lakes have been reclaimed,

encroached or otherwise usurped by the so called development activities.

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299. The concept of wetlands, as we already said, is not a mere water

contained water body but its interface and surrounding i.e., the

catchment area/buffer zone/zone of influence etc., which, if allowed to be

used for purposes other than wetland connected activities, may

erode/damage or extinct the entire wetland itself. Whenever, commercial

and other activities i.e., other than what can be termed as activities for

protection and preservation of wetlands and its surroundings, are allowed

to be taken near or abutting wetland, it has to be ensured that certain

area from the periphery of wetland is reserved and no commercial or

development activities should be allowed thereon otherwise

wetland/water bodies will suffer adversely. How much area should be

reserved or be declared non-development area around a wetland/ water

body has to be determined looking to various aspects relating to

concerned wetland/water bodies. A universal determination may not be

proper. It is true that provisions may be made declaring certain

minimum area within which no development activities can be allowed so

as to protect wetlands/water bodies but this minimum area is not the

maximum and restriction over further area, if any required, will depend

upon the nature of wetland/water bodies, its vegetation, flora, fauna and

other activities connected therewith which may be found necessary for its

protection and preservation. With that view of the matter, in Wetlands

(Conservation and Management) Rules, 2010 and 2017, instead of using

the term ―Buffer Zone‖, the term ―Zone of Influence‖ has been used which

is obviously a wider term then ―Buffer Zone‖.

300. When we talk of maintaining greenbelt surrounding a

wetland/water body, it does not mean a public recreation place like

public park, open space etc. It means a place reserved for natural

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wetland‘s own activities untouched by any PP/Developer for taking it as a

part of its project.

301. In Indians sub-continent, with the passage of time, for one or the

other reasons or sometimes compelling reasons, when inhabitants were

ruled by people from outside Indian sub-continent, the Rulers ignored or

missed dictates of Vedic Literature and propagate to the people also. The

result is, with passage of time, nature has got worst affected and

deteriorated quality and contents significantly.

302. Problem of environment today is a Global phenomenon. The

irresponsible and unmindful development has proved an enemy to

environment. It has increased pollution everywhere compelling Global

leaders to take recourse for protection of environment, if necessary, by

framing strict and stringent provisions, but fact remains, that condition

of environment today is extremely alarming.

303. In the Tribune 23rd June, 2006, it was published that 70 percent of

all available water in India is polluted. Even, Supreme Court realised the

pace with which even wetland were eroding and disappearing in M.K.

BalaKrishnan vs. Union of India (Supra) and found need of immediate

action. It directed Government of India to apply Rule 4 of Wetlands

Rules, 2010 to 2,01,503 wetlands identified and mentioned in ―National

Wetland Inventory & Assessment‖, to avoid any further extinction of

wetlands.

304. Therefore, protection of wetlands in all seriousness is a matter of

great concern. It cannot be done in a technical or formal manner but

require sincere, wholesome and comprehensive effort to protect not only

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territorial boundary of water or periphery of wetland but the entire

surrounding of wetland necessary for its preservation.

305. When we look into the matter objectively and apprehend what is

latent, we have no manner of doubt that any economic activity which is a

part of a civic amenity of any particular project cannot be allowed either

in a wetland or within its ―Zone of Influence‖ which would include buffer

zone also. PP, even if has ownership of some land abutting a wetland,

the area of such land of PP which comes within the ―Zone of Influence‖

including buffer zone cannot be allowed to be used or developed for the

purpose of the Project. It has to be left as it is, as a part of wetland itself

and needs be protected as a greenbelt i.e., only trees etc., can be planted

but for that purpose also Horticulture and Forest Expert‘s opinion has to

be obtained so that characteristic of specific flora and fauna of the area is

not disturbed and coherence is maintained.

306. ―Kaikondarahalli Lake‖ is an old lake but dried up on account of

unauthorized and illegal construction and encroachment around it. It

was rejuvenated as stated by BBMP/BDA in the Year 2011 but now

efforts are continuing to occupy its surrounding area by raising

constructions which are bound to throttle wetland activities and it would

ultimately eat up the entire wetland in question.

307. In respect of Bangalore city, time and again many articles etc., have

been published wherein attention was drawn that rampant use of

groundwater, change in land use, dumping of city waste in the

catchment, sand and stone mining and removal of forest have made

rivers, streams and wetlands go dry. Still, Regulators/Statutory

Authorities, who are responsible for protection, preservation and

maintenance, are noticeably negligent in discharge of their duties of

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protecting these water bodies/wetlands and other ecological places from

being exploited by the greed of men.

308. ‗Sustainable Development‘ is the key word for protection of

environment including wetland. It means that simultaneous development

has to be allowed but not at the cost of one or another. In the name of

development, environment cannot be allowed to die, may be a slow death.

309. Nature has provided lot of water to the mankind but we are not

realising how much important it is for us to preserve and protect water

which is available in different forms. It was suggested at some point of

time that scarcity of water or pollution of land and rivers can be

addressed if we calculate ecological cost of water and people who use

water, should be required to pay for it then they would realise the cost of

water and may be motivated to preserve it but for various political and

other reasons neither it was found practicable nor possible.

310. Competent Authority, while grant Environmental Clearance, is

under a statutory obligation to consider application in Form 1 and 1A

submitted by PP, in the light of information disclosed therein, visit the

site and find out whether there is any possibility of damage to

environment if Environmental Clearance is granted and project is allowed

to proceed. In this regard, Principle of Precaution has to be applied with

full force. In other words, grant of Environmental Clearance is not a

mechanical exercise. In observing so, we are fortified by the dictum of

Supreme Court in Common Cause Vs. Union of India (2017) SCC 499,

wherein Court said that

“There is no doubt that the grant of Environmental Clearance cannot

be taken as mechanical exercise. It can only be grant after due
diligence and reasonable care since damage to the environment can
have a long term impact………”

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311. The above dictum has been reiterated and followed in Alembic

Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., 2020 SCC OnLine

SC 347.

312. It was also held in Alembic Pharmaceutical Ltd. (supra) that

before issuance of Environmental Clearance, statutory notification, i.e.,

EIA, 2006 warrants a careful application of mind besides study into the

likely consequence of proposed project on the environment, and for this

reason, concept of ex-post facto clearance was held alien to environmental

laws. Court said that environmental laws cannot take cognizance of the

notion of ex-post facto clearance since it will be contrary to law,

Precautionary Principle as well as need for sustainable development.

313. In this case, facts show that the things are neither straight nor

proceeded in ordinary course of business. Instead there is something

fishy and suspicious attracting the concept of malice in law. The

chronology of the steps taken by PP and the manner it gives different

information to different authorities show lack of bonafide, and

transparency.

314. PP was so confident of project and its execution that even before

any step could have been taken for commencement of Project activities, it

applied to BBMP seeking permission of construction of RCC Box, Drain

and Culverts and permissions were granted by Commissioner, BBMP in

August, 2017. At that time, neither Development Plan was passed nor

even application for grant of EC was submitted. Still PP was sure and

confident that it can proceed with construction activities over and in

respect of Storm Water Drain which was passing almost in the middle of

project site despite that statutory provisions prohibit not only any

alteration or modification of such natural Storm Water Drain but also

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prohibit construction in the specified buffer zone thereof. This was

known to BBMP also in view of operation of RMP-2015 in Bangalore city

still such permission was granted by Commissioner and that too by

exercising power under statutory provisions which did not give any such

power to him and he acted wholly without any jurisdiction. This shows

that everything was not fair, straight and transparent but PP must have

reasons for its confident approach of taking steps even in violation of

environmental laws and destructing environment for which he got

support from statutory authorities. PP gave different figures of number of

units it proposed to construct, built up area, drains, and with regard to

location of project site vis-a-vis, the lake and drains etc., and yet all these

flaws on his part not only stood condoned or omitted or ignored by

various authorities from time to time, but unfortunately, even Second

and Third Joint Committees, without properly analyzing all the

document, as we already discussed, have proceeded to somehow or the

other justify action of PP though apparently it was not so.

315. The Second and Third Joint Committees have noticed that project

site is abutting ―Kaikondarahalli Lake‖ and PP has proposed to develop

Park and Open Space as a part of the project in an area connecting to the

periphery of the lake itself but had justified it in the garb of green belt

completely ignoring and forgetting that a green belt on the site of lake or

a water body is open to all and never can be treated as part of

construction project particularly residential project where the entire area

is part of the project and confined to benefit of the

beneficiaries/occupants and not for general public. A part of buffer zone

could not have been allowed to be part of a private construction project

making it restricted for the use of the beneficiaries of the project and not

for general public.

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316. Similarly on the issue of built up area these Committees have

referred Item 8 of Schedule to EIA 2006 as initially made and have

omitted to refer amended Item 8 which brings in entire service areas of

construction project and basement in built up area. Stand of PP taking

at a later stage that as a matter of fact it will proceed with lesser ―built up

area‖ or lesser number of flats etc., will not justify statutory

permissions/sanctions/clearances which have been granted on different

facts disclosed by PP when he sought permission/consent/clearance and

submitted requisite application and forms etc. The correctness of

sanctions, permissions and clearance etc., given by Statutory Authorities

has to be judged in the light of information given by PP in his

application/form etc., seeking such permission, clearance and sanction

etc., which has not been appreciated unfortunately by Second and Third

Joint Committees in their Reports. We are very clear in our mind that

these Report are based on incorrect facts, lack of appreciation of

information whatever available on record and ignore several facts which

point out to the fault of PP. Hence, we reject both these reports.

317. We do not propose to burden the judgments with catena of

authorities on the point that in deciding matters relating to environment

and the cases where norms have been flouted, basic principles of

Sustainable Development, Precaution and Polluters Pay as well as the

liability of PP for restitution and rejuvenation of environment which has

been damaged by it, environment compensations/damages or costs are to

be followed and applied.

318. Summing up, we find serious fault and violations of environmental

laws and norms on the part of PP as well as some Statutory Authorities

including SEIAA, Karnataka and BBMP in particular. The faults and

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violation which we have already discussed in detail may be summarized

as under:

A. Information regarding Built up Area:

a) As per DP-

 Gross built up area for Block 1 & 2-169957.37 square meters.

 Built up area (after deduction for Shafts and cutouts)-
127149.25 square meters.
 Net FAR-94705.36 square meters.
 Number of Units-688
 Number of cars provided for parking-758

b) As per application Form 1 and 1A submitted to SEIAA,

Karnataka for grant of EC-

 Built up Area-128193.9 square meters.

c) As per EC dated 10.01.2018:

 Total built up area-128193.9 square meters

 Total units/flats-655
 Parking for cars-877

d) As per KSFES report:

 Total built up area-124050 square meters

 Total units/flats-625
 Parking for cars-854

(Here the built up area has been calculated exclusively on the basis of

655 flats and staircases etc. provided in the tower. Other civic amenities

and construction have not been taken into consideration.

e) As per BWSSB:

 Total built up area-171755.37 square meters

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B. As per inspection report dated 23.02.2018 of Environmental Officer of

KSPCB, Bengaluru, built up area claimed by PP is 128193.9 square

meters but Site Plan shows, 93423.70 square meters and construction

of 655 flats and club house.

C. PP sought construction of RCC Drain and RCC box type culvert for

Storm Water Drain connecting both the lakes i.e. ―Kaikondarahalli

Lake‖ and ―Kasavanahalli Lake‖ flowing in Survey nos. 63/2 by

submitting application dated 13.06.2017 and Commissioner, BBMP

allowed on 26.07.2017, communicating by Chief Engineer, vide letter

dated 02.08.2017 though till that date, neither DP was sanctioned nor

even application for grant of EC was submitted, nor this fact was

disclosed in the application for grant of EC. Further PP commenced

constructions even before grant of EC and CFE.

D. With regard to distance from lake, PP mentioned in application Form 1

and 1A that the site is 75 meters from the lake though site is abutting

the lake as shown by DP itself.

E. The position of drains and numbers is also differently stated in three

Joint Committee‘s Reports as also by various authorities inspecting

the site for grant of sanction/permission/clearance sought by PP.

F. PP claimed that huge quantity of soil has to be excavated and that will

be used for leveling etc. but as photographs show that it was dumped

on the side of the lake and we also have noticed some dumping of soil

in the lake water also.

G. The development of project in buffer area by developing Park and

Open Spaces confined to beneficiaries of project is evident from record

but in an illegal manner, Second and Third Committee have justified

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 the same, ignoring the relevant environmental laws on this aspect

including Wetland Rules.

H. PP has taken different stand from time to time.

I. With regard to other sensitive areas at some distances which we have

already discussed above, no information was given by PP.

J. With regard to existence of flora-fauna etc. PP has not disclosed

anything in the application submitted for grant of EC.

319. With this backdrop, we now find force in the objections raised by

applicant/appellant that Third Joint Committee who actually made

inspections thrice and submitted report is not the one which was

constituted by Tribunal and MoEF&CC. The officials, who were actually

appointed members, chose on their own to send their sub-ordinates or

officers lower in rank and they are signatories to the report. No such

power was given to the officers, made members of the Committee, to

delegate to anyone else. This action on the part of such members is

wholly unwarranted, unauthorized and illegal. In fact, they stand in

flagrant defiance of order of Tribunal by permitting such persons to

prepare report and sign it though not authorized to do so and could not

have done it. In this view and considering discussions already made

above, we have no hesitation in holding that change in the Committee by

the members appointed by this tribunal is wholly illegal, unauthorized

and it is an additional ground to reject the report of Third Joint

Committee. The confidence of PP in proceeding ahead at different levels

without caring for Statuary Provisions, Procedures and Environmental

Laws, supported by some of the statutory authorities is evident by the

conduct of senior officers of various departments who were appointed

226
members of the Committee by Tribunal and MoEF&CC, yet they defied

the same. It appears that in a concerted way, some officials have acted to

somehow justify patent illegality and bold defiance of law on the part of

PP. Clearly, there is an evident lack of bonafide on the part of the

officials and this conduct deserves to be strongly condemned. We will

request Secretary, MoEF&CC to look into the matter and take appropriate

action against such erring officials.

320. Before parting, we also intend to place on record that torch bearer

for protection of environment in the last about 40 years is only judiciary.

Executives primarily have responsibility to preserve, protect and maintain

environment as clean and green but unfortunately, treat as enemy to

their own notion of development. A lot of seminars, lectures and debates

are held in the name of protection of environment by Executives, political

and otherwise but on the ground level substantial work is wanting. The

Executives feel satisfied sometimes by framing some laws without being

serious to the execution and implementation thereof. Statutory

Authorities/Regulators who are made responsible for protection of

environment and heavily managed by Executives lack will to do, intention

to perform and desire to achieve the ultimate goal of protection of

environment. Even when orders are passed on judicial side, the real

problem comes with regard to implementation and execution of the

orders. All excuses and pretext are put forth more to demonstrate

difficulties in execution instead of showing any genuine effort towards

compliance. Even the concerned departments are not honest to

discharge functions in a manner which will promote preservation and

protection of environment and ecology. On the other hand, it appears to

be taken as a burden and obstruction in development. This approach is

neither conducive nor coherent to the concept of sustainable

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development. Sooner is the better that the Executives understand and

show more responsibility and accountability towards nature and ecology

before it is too late rendering the things improbable and impossible to be

reversed.

321. In these facts and circumstances, we are of the view that Appeal

and OA-2 deserve to be allowed. We order accordingly and issue

following directions:

(i) EC dated 10.01.2018 is quashed.

(ii) The construction raised by PP (respondents-11 and 12)

having commenced even before grant of Consent to Establish

by KSPCB and in violation of conditions of EC, and also

looking to the conduct of PP who has continued to contest

the matter instead of making an attempt to rejuvenate and

restore damage to environment, we direct that the

constructions made on site shall be demolished immediately.

State Wetland Authority and BBMP shall take steps for

restoration and rejuvenation of the area as originally it was.

(iii) We impose compensation for damage to environment as 10%

of the cost of project. The cost of project mentioned in the

application submitted for grant of EC was 310 crores, hence

PP is directed to pay 31.00 crores. This amount shall be

used for demolition of the constructions as per direction (ii),

restoration of the area to the original position, rejuvenation

and reforestation etc. of the ―Kaikondarahalli Lake‖ and its

surrounding area. PP shall deposit the amount within one

month with the State Wetland Authority. The amount shall

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 be kept in a separate account by the said authority. The

same shall be utilized by preparing a restoration plan by the

said authority with the assistance of the BBMP, KSPCB and

CPCB. Restoration plan shall be executed by State Wetland

Authority and BBMP which may also be overseen by KSPCB

and CPCB. The restoration plan be prepared within two

months and executed within one year. It is made clear that if

any amount remains available after undertaking the

restoration work, the same will be utilized by the Wetland

Authority for maintenance and beautification of the lakes in

question. If the amount is found to be deficient, the

deficiency will be made up by BBMP. If any question

remains unresolved, but in the authorities, the National

Wetland Authority is directed to resolve the same.

(iv) We also impose a cost of Rs. 10 lacs upon BBMP who allowed

construction/alteration of Storm Water Drain passing

through the project site illegally and the said amount paid by

BBMP, shall be deposited in Environmental Compensation

Fund and utilized for restoration and rejuvenation of

environment. The said amount shall be deposited by BBMP

with the State Wetland Authority within one month and be

form part of the same separate account to which

compensation paid by PP will be credited.

(v) We also impose litigation cost of Rs. 20 lacs which shall be

paid by PP and deposited with CPCB to be utilized for the

protection and preservation of environment.

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322. OA No. 281/2019 i.e. OA-1 stands allowed and disposed in the

manner and in terms of directions stated in para 155 above of this

judgment.

323. A copy of this order be forwarded to the Chief Secretary,

Karnataka, MoEF&CC, CPCB, National Wetland Authority, State Wetland

Authority, KSPCB, SEIAA, Karnataka, BBMP and BDA by e-mail for

compliance.

Adarsh Kumar Goel,

Chairperson

Sudhir Agarwal,
Judicial Member

M. Sathyanarayanan,
Judicial Member

Brijesh Sethi,
Judicial Member

Dr. Nagin Nanda,

Expert Member

July 30, 2021

Appeal No. 54/2018
Original Application No. 602/2019
Original Application No. 281/2019
R&AVT

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