A case which i got up close with (below is a write up from the archives 13-Jun-2007)
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It confounds us today also that the very basis of giving clearence, that substantial construction has taken place, was first created by the SC, when it did not stop construction 2 years back; when we were shouting for the same - providing all background and evidence of the environmental importance of the area by SC’s own Committes. Had the SC acted on the premise that the construction has to be stopped as Environment once destroyed cannot be restored; any construction can always happen later and hence can wait, we would have saved Nature, instilled some faith in our laws…instead…
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The Write-up
I am refering to a particular construction project Airtel/Maruti, DLF, ONGC, Ambience Developers are undertaking on the Vasant Kunj Ridge. This is the construction of Airtel Corporate Office (in the Vasant Kunj Malls complex). This matter was in the Supreme Court, which had stayed the construction of all projects on 1st May 2006, subject to an Public Hearing and an Environmental Expert Committees view.
The area on which these malls and offices are coming up are a part of the Vasant Kunj Ridge. There was ambiguity (created by Delhi Development Authority (DDA)) on the land use of this small area. However, many agencies like the Bhurelal Committee, Geological Survey of India, Central Ground Water Authority (CGWA), EPCA, etc had all submitted to the Supreme Court that this area is, in all means Ridge – it should be maintained in its pristine glory. CGWA went ahead and said that this is a “vital water recharge zone, with 85% of rainwater percolating down and no construction activities should be allowed”.
The first wrong was that DDA auctioned off this area – in Dec 2003, even after few years back a 13 hotel complex project was cancelled due to the areas environmental importance (Public Interest Litigation (PIL) by CPQLW)
But next wrong was by the land buyers – Airtel, Maruti, DLF, Ambience Developers, who without taking any clearences from the Pollution Control Committe, Delhi Forest Dept, CGWA, without carrying out an Environment Impact Assessment (EIA) and public hearing started construction on the land. As per all laws the EIA and Public hearing has to be done even before one spade is dug into the land, even before a boundary is marked.
A PIL was again submitted in Supreme Court in Jan 04 to stop the consturction citing all facts. The Supreme Court did not stay the constuction, neither did any of the government agencies act to stop the construction. The corporates chose to ignore the notices sent by DPCC to stop construction till the time all clearences had been taken.
As usual the Supreme Courts kept postponing the hearing dates by a month and our corporates kept adding a floor each month.
Finally, on 1st May SC ordered that EIA and Public Hearing be done and the project be stayed, an Environmental Expert Committee to give recommendations. On19th and 20th June 2006 on the day of Public Hearning, all facts were presented and all the EIA reports were rubbished. At times we felt that the report had nothing but English in it. All facts were mis-represented. The Dy GM – Corporate Affairs, from Bharti Tele-Venture Ltd., Mr P K Sarma even told us what will you do, this is just a formality, the clearance will come through. Same were the thoughts of the rest. As if every one was sure that our system will favour the rich and the powerful and not the law of the land.
On 17th Aug 06, the expert committee report was out. In the first para of the findings they agreed that the area is by all means a Ridge, it should have have been protected. There was no evidence that DDA had done any environment impact assessment before auctioning off the area. DDA was wrong in doing this…But in the fouth para there was a complete reversal of stand – now that substantial construction has happened and demolition is not the option in this case, we can recommend clearence with heavy penalties and an effective Env Management Plan (EMP).
This was a complete mockery as the construction by the 7 land owners was indeed not substantial to what would have happened. Only Ambience Developers and DLF had some floors built up, Maruti and Airtel only the foundation put, and ONGC not even started. This was at a time when Delhi was being broken by DDA and MCD for small illegalities by the traders. It was recommended by us that all Malls should be demolished and a water sacuntary be made.
The SC did not decide to take a stand, did not even censure DDA for doing wrong, and passed the final decision to Min of Env and Forest (MoEF), which it self had not taken action earlier (judgement attached). All recommendations of the expert committee were passed/executed, where as there was a clause “can recommend clearence”; it was still totally in the hands of the MoEF to take a stand on what it was constituted for – protecting the environment. It protected the interests of the high and the mighty.
It confounds us today also that the very basis of giving clearence, that substantial construction has taken place, was first created by the SC, when it did not stop construction 2 years back; when we were shouting for the same - providing all background and evidence of the environmental importance of the area by SC’s own Committes. Had the SC acted on the premise that the construction has to be stopped as Environment once destroyed cannot be restored; any construction can always happen later and hence can wait, we would have saved Nature.
If our corporates who show that a single man can change a destiny of the nation (Express Yourself), say Count On Us (Maruti), and make bold statement like Building India (DLF) they should take moral responsibility of first sorting out the wrongs in their own houses.
The ideal way should have been that all corporates take a moral high ground pulled out of their projects and filed a case against DDA. Instead all made each other comfortable.
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Excerpts from Supreme Court Judgement: para 1 establishes that everything was wrong. Para 4 reverts it and allows construction.
CASE NO.:Writ Petition (civil) 202 of 1995
PETITIONER: T.N. Godavarman Thirumulpad RESPONDENT:Union of India and Ors
DATE OF JUDGMENT: 17/10/2006
BENCH: ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT: J U D G M E N T I.A.NO. 1156 IN WP (C) NO. 202 OF 1995 [With I.A.Nos.1192, 756, 1463, 1501 and 1532 in WP (C) 202 OF 1995]
ARIJIT PASAYAT, J
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Subsequently, on an application filed, this Court by an order dated 19.8.1997 held that 92 hectares of land out of the aforesaid 315 hectares of land was a constraint area and only in respect of the balance 223 hectares of land the constructions have to abide by the conditions of clearance. Subsequently, a Writ Petition was filed (W.P.No. 564/2003) which was dismissed by an order dated 8.3.2004. Pursuant to the directions of this Court the Committee constituted has given its report. The recommendations made by the Committee are as follows:
1. The project site has topographical features similar to that of the ridge. Various studies, including EIA documents submitted now for obtaining environmental clearance, establish the environmental value of this area, particularly as a zone of groundwater recharge. Therefore, DDA should have exercised adequate environmental precaution based on a sustainable environmental management approach. There is no evidence that the environmental impact of the construction of malls was assessed beforehand and that the development of this area for commercial activities is in accordance with the Master Plan.
2. DDA’s advertisement (Hindu Dec 12, 2003 ) states: “purchaser would be required to obtain necessary clearance for the project from the EPCA and/or DPCC before submitting the plans for sanction to the Building Dept of DDA”. There is no confirmation that this requirement was fulfilled by the allottees.
3. DDA has mentioned that FAR for the projects under reference is pegged at 1.0. However, it is seen that for all the buildings proposed in Plot no. 1 to 5, DDA has permitted a higher FAR which works out to 1.25 to 1.29.
4. In hindsight it is evident that the location of large commercial complexes in this area was environmentally unsound. Now many proponents have constructed very substantially and really speaking awarding clearances even with conditions is largely a compromise with de-facto situation. The Expert Committee is of the opinion that at this stage only damage control is possible by strict implementation of effective EMP and resource conservation measures in the project construction and operational stages.
Photos below show what the Supreme Court considered “substantial construction”
5. As stated earlier in the interim report, the Committee suggests that the Ministry of Environment & Forests and the Supreme Court may consider imposing a penalty on the project proponents who commenced construction works without obtaining environmental clearance in contravention to the Notification in July 2004.
6. Existing vacant plots (no. 6 and 7) of the shopping mall complex should not be auctioned by DDA for more malls or commercial activities. They may be kept open as a fringe of the bio-diversity park or earmarked for development of any common facilities that may be needed in the area.
7. Treated sewage from Vasant Kunj Sewage Treatment Plant must be utilized as much as possible for such purposes as water cooled chillers, toilet flushing, gardening and horticulture and floor washing. This will reduce the requirement of fresh water.
8. The aforesaid purposes will need tertiary treatment of sewage. Since the allottees of offices and malls have proposed to carry out entire treatment up to tertiary level on their own, it should be possible for them to treat the treated sewage received from Vasant Kunj sewage treatment plant to the required level.
9. While rainwater harvesting should be done, the withdrawal of ground water should not he permitted in the shopping mall area.
10. For construction, use of ready-mix concrete (RMC) should be made compulsory so as to reduce movement and storage of materials and generation of dust.
11. Utilization of solar energy must he maximized in all these proposals both for heating water and generating power to light up corridors and parking.
12. A Monitoring Committee may be constituted for overseeing the project so as to ensure effective implementation and compliance to environmental safeguards”.
In support of the applications, learned counsel has submitted that it has never been held by this Court that 92 hectares of land are not a part of the ridge. On the contrary, the first order itself made the position clear. The clarification by order dated 19.8.1997 had really expressed no opinion on the question whether the land was a part of the ridge. A report was given by the Environmental Pollution (Prevention and Control) Authority (in short ‘EPCA’) chaired by Shri Bhure Lal wherein it has been clearly stated that environmental factors were not in favour of urban development use of land and the entire parcel of land should be developed as green. Therefore, it is submitted that there has been clear violation of the norms fixed on 7.7.2004
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