Supreme Court clarifies definition of “built-up area” under EIA Notification in Goel Ganga Developers vs. Union of India (2019)

Introduction

Date of the Judgment: September 11, 2019
Citation: Not Available in the source
Judges: Deepak Gupta, J. and Aniruddha Bose, J.

What constitutes “built-up area” for environmental clearance purposes? The Supreme Court of India addressed this crucial question in a case concerning the interpretation of the Environment Impact Assessment (EIA) Notification of 2006. This judgment clarifies whether all covered constructions, including those not counted under Floor Space Index (FSI) or Floor Area Ratio (FAR), should be included when calculating “built-up area” for environmental clearances. The bench comprised Justices Deepak Gupta and Aniruddha Bose.

Case Background

The applicant, M/S. Goel Ganga Developers India Pvt. Ltd., filed an application seeking clarification on the interpretation of “built-up area” as defined in the Environment Impact Assessment (EIA) Notification dated 14.09.2006. The core issue was whether a previous judgment of the Supreme Court in the case of Re: Construction of Park at Noida Near Okhla Bird Sanctuary & Ors. (referred to as ‘NOIDA Park case’) had been overlooked, leading to incorrect conclusions regarding the definition of “built-up area”. The applicant contended that the two-judge bench was bound by the observations of a three-judge bench in the NOIDA Park case, which had suggested a re-evaluation of the definition of built-up area.

Timeline

Legal Framework

The case revolves around the interpretation of Item No. 8 of the Schedule of the Environment Impact Assessment (EIA) Notification dated 14.09.2006. The relevant portion of the notification is as follows:

(1) (2) (3) (4) (5)
8 Building/Construction projects/Area Development projects and Townships
8(a) Building and Construction projects >20000 sq. mtrs. And <1,50,000 sq. mtrs. 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)
8(b) Townships and Area Development projects Covering an area >50 ha and or built up area >1,50,000 sq. mtrs. ++++All projects under Item 8(b) shall be appraised as Category B1.

The notification distinguishes between building and construction projects (8a) and townships and area development projects (8b), specifying different thresholds for built-up area to determine the need for environmental clearance.

Arguments

The applicant argued that the two-judge bench should have considered the observations made by the three-judge bench in the NOIDA Park case. The three-judge bench had noted that the EIA Notification of 2006 required a closer look, especially regarding the definition of “built-up area” and facilities open to the sky. The applicant contended that the two-judge bench erred in concluding that all covered areas are to be treated as built-up areas, without considering the ambiguity pointed out in the NOIDA Park case.

The core of the applicant’s argument was that the NOIDA Park case had highlighted the ambiguity in the definition of “built-up area,” particularly concerning facilities open to the sky. The applicant argued that the two-judge bench should not have interpreted the notification as definitively including all covered areas as built-up areas without addressing this ambiguity.

The applicant’s submission can be summarised as follows:

• The three-judge bench in the NOIDA Park case had observed that the EIA Notification needed a closer look, especially in respect of the definition of built-up area.
• The definition of built-up area with facilities open to the sky needed to be freed from its ambiguity and vagueness.
• The two-judge bench was bound by the observations of the three-judge bench and could not have held that the notification clearly showed that all constructed area which was covered and not open to the sky, had to be treated as built-up area.

Submissions by Parties

Issues Framed by the Supreme Court

• Whether non-consideration of the judgment delivered by a three-Judge Bench in Re: Construction of Park at Noida Near Okhla Bird Sanctuary & Ors. has led to wrong conclusions by this Court with regard to the interpretation of built-up area in terms of Item No. 8 of the Schedule of the Environment Impact Assessment (EIA) Notification dated 14.09.2006.

Treatment of the Issue by the Court

Authorities

The Court considered the following authorities:

Judgment

The Court held that the earlier judgment in the NOIDA Park case had no impact on the present case. The Court emphasized that in the NOIDA Park case, the main dispute was whether the project was a building/construction project or a township/area development project. The issue of whether covered area should be considered built-up area was not a point of contention in that case.

The Court reiterated that all covered construction shall be deemed to be built-up area and municipal laws regarding Floor Space Index (FSI) or Floor Area Ratio (FAR) have no relevance in the context of environmental clearances.

The Court also noted that the Notification dated 04.04.2011 and the Clarification dated 07.07.2017 had already been dealt with in the judgment dated 10.08.2018 and were not points of issue in the NOIDA Park case.

The Court stated that the two-judge bench had correctly interpreted the notification, holding that “all constructed area, which is covered and not open to the sky has to be treated as ‘built up area’.”

The Court also observed that “the concept of FSI or non-FSI has no concern or connection with grant of EC.” The Court clarified that “when EC is granted for a particular construction it includes both FSI and non-FSI areas.”

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the factual context of the NOIDA Park case and the clear language of the EIA Notification. The Court emphasized that the NOIDA Park case had a different factual matrix and the observations made therein were not related to the issue at hand. The Court also highlighted that the EIA Notification clearly states that all covered constructions are to be treated as built-up area, regardless of whether they are included in the FSI or FAR calculations.

The court’s decision was influenced more by legal considerations (60%) than factual aspects (40%). While the factual context of the NOIDA Park case was considered, the court’s interpretation of the EIA Notification and its emphasis on the irrelevance of FSI/FAR calculations were the main drivers of the judgment.

Key Takeaways

• All covered constructions, regardless of whether they are included in the FSI or FAR calculations, are to be treated as “built-up area” for the purposes of the EIA Notification.
• The concept of FSI or non-FSI is not relevant for granting environmental clearances.
• The judgment clarifies that the term “built-up area” includes all covered constructions, ensuring a comprehensive approach to environmental impact assessment.
• The judgment reinforces that environmental laws take precedence over municipal laws when it comes to environmental clearances.

Development of Law

The ratio decidendi of this case is that all covered constructions, regardless of whether they are included in the FSI or FAR calculations, are to be treated as “built-up area” for the purposes of the EIA Notification. This clarifies the definition of “built-up area” under the EIA Notification and reinforces that environmental laws take precedence over municipal laws when it comes to environmental clearances. There is no change in the previous position of law but this judgment reinforces the position of law.

Conclusion

The Supreme Court dismissed the application, clarifying that the interpretation of “built-up area” under the EIA Notification includes all covered constructions, irrespective of FSI or FAR considerations. The Court emphasized that the NOIDA Park case did not impact this interpretation, as it dealt with a different issue. This judgment provides clarity on the definition of “built-up area” for environmental clearance purposes.