Landmark environmental jurisprudence
The boom in India’s economic growth has resulted in mass urbanisation on a scale rarely witnessed in the history of mankind. The population of several Tier I and II cities has grown exponentially in the last two decades as millions of people seek better economic opportunities. However, this economic growth has come at a tremendous cost to the quality of human life as unplanned urban developments have mushroomed, giving rise to pollution, congestion, and diseases that give rise to living conditions that would be termed “miserable” by western standards. Thus, it comes as no surprise that Indian cities figure at the bottom of the list of any quality of life survey done at the international level.
The prime reason for this dismal state of affairs is visible everywhere—illegal construction. Developers blatantly violate development control regulations that stipulate mandatory open spaces, recreation grounds, parking, and fire safety. Unscrupulous municipal officials look the other way and consequently, the right to life of citizens gets compromised. To make matters worse, enforcement of development control regulations was considered a municipal matter and not as one falling within the scope of the term “environment”.
On September 3 this year, the principal bench of the National Green Tribunal (NGT) at New Delhi passed a landmark judgment that, for the first time, brought important principles of town planning within the scope and jurisdiction of the NGT. In its judgment in the matter of Sunil Kumar Chugh v/s Secretary, Ministry of Environment and Forests, New Delhi, Appeal No. 66 of 2014, the NGT held that open spaces, recreational grounds and adequate parking facilities in buildings had an important bearing on the right to life of people.
The appellants, Sunil Kumar Chugh and Ravinder Khosla, were residents of the slum redevelopment project being carried on by the developer, M/s Priyali Builders at Antop Hill, Mumbai. They filed an appeal challenging the Environmental Clearance (EC) issued to the developer on March 25, 2014, as illegal and prayed that the same be quashed.
In their appeal, the appellants stated that the builder had violated the Environmental Impact
Assessment Notification, 2006 by starting construction without EC, way back in 2009. For five years, the developer continued construction without EC. The State Environmental Impact Assessment Authority (SEIAA) of Maharashtra ignored this blatant violation and blindly granted EC to the builder.
It was further averred by the appellants that the developer did not provide any recreation ground to the residents. Further, he did not provide any parking spaces for the residents of the rehabilitation tenements, as a result of which, they were forced to park on the street. This severely prejudiced their right to life under Article 21 of the Constitution of India.
The case was heard by the principal bench at New Delhi, comprising Justices Swatanter Kumar and U D Salvi, along with expert members D K Agrawal and M A Yusuf. In its judgment, the bench held that the developer had violated the EIA Notification, 2006 and the Environment Protection Act, 1986 by commencing construction without prior EC. Further, by not providing adequate recreation grounds, the developer had severely prejudiced the right to life of the appellants. Consequently, the bench held the developer liable for violating the law and imposed a fine of Rs. 3 crore to be paid into the environmental relief fund maintained under the Public Liability Insurance Act, 1991. Further, taking note of the fact that the developer had provided deficient recreation grounds to the residents, the court directed that a further sum of Rs. 32, 63,600 be paid to the Maharashtra Pollution Control Board (MPCB) for the deficient recreational area in the building. The approved plan of the building was quashed and the builder was directed to submit a fresh plan that would contain adequate parking for all residents of the building and address the shortfalls.
During the court proceedings, the developer had claimed that prior EC was not required as the “FSI Area” (Floor Space Index or Floor Area Ratio) of the project was less than 20,000 square metres, the prescribed statutory limit. He claimed that the lift lobby and staircase area were exempt from the computation of built-up area under the EIA Notification. The NGT strongly rejected this argument, stating that the term “built-up area” includes the entire construction area, saleable and non-saleable. It further held that the 2011 amendment to the EIA Notification that clarified the term “built-up area” was clarificatory in nature and would have a retrospective effect from 2006 itself.
The booming construction industry in Mumbai has resulted in repeated violations of environmental norms that severely prejudice the right to life of the residents. Innumerable projects commence construction without prior EC. Ex-post-facto clearances have been granted arbitrarily, without imposing any penalty on the developer. The landmark judgment of the NGT in the case of Sunil Kumar Chugh v/s Ministry of Environment and Forests, New Delhi & Others (Appeal No. 66 of 2014) will set a strong precedent in penalising violators and quashing the illegal permissions granted to them. Further, builders will not be able to segregate FSI areas from non-FSI areas and pass off the same as built-up area. This ruling is indeed an important step forward in the effort to save India’s cities from the degrading effects of illegal construction and haphazard urbanisation, which have so far continued unabated. DOWN TO EARTH
(The author is a practising lawyer at the Bombay High Court and the National Green Tribunal. He had appeared for the appellants in the above matter before the principal bench of the National Green Tribunal at New Delhi. Views expressed are strictly personal)