Holding

The NOIDA Park judgment does not affect the interpretation of built‑up area; only covered construction is deemed built‑up area, and the application is dismissed.

Summary

The petitioners, Goel Ganga Developers India Pvt Ltd, filed an interlocutory application challenging the Supreme Court's interpretation of "built up area" under Item 8 of the Environment Impact Assessment (EIA) Notification dated 14 September 2006. They argued that the Court should have considered a three‑Judge Bench decision in the NOIDA Park case, which they said required activity areas open to the sky to be treated as built‑up area. The two‑Judge Bench held that only covered construction constitutes built‑up area and that municipal concepts such as Floor Space Index are irrelevant for environmental clearance. The Court examined the factual context of the NOIDA Park case and concluded that the issues there were different and did not bind the present interpretation. Consequently, the earlier judgment was held to have no impact, and the interlocutory application was dismissed.

Issues considered

Whether the Supreme Court must follow the three‑Judge Bench judgment in the NOIDA Park case for interpreting "built up area" under Item 8 of the EIA Notification, 2006.
Whether activity areas open to the sky should be included in the definition of built‑up area for purposes of environmental clearance.

Legislation cited

Clarification dated 07.07.2017
Environment Impact Assessment Notification, 2006s. Item 8(a), s. Item 8(b)
Environment Impact Assessment Notification, 2011

Subjects

Environmental LawEIA NotificationBuilt‑up AreaInterpretation of Statutory TermsFloor Space IndexSupreme CourtInterlocutory Application

Judgment

220 [2019]REPORTS
SUPREME COURT 12 S.C.R. 220 [2019] 12 S.C.R.

A M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD.
v.
UNION OF INDIA THROUGH SECRETARY MINISTRY OF
ENVIRONMENT AND FORESTS & ORS.
B (I.A. NO.64665 of 2019)
IN
(Civil Appeal No. 10854 of 2016)
SEPTEMBER 11, 2019
C
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Environmental Laws: Environment Impact Assessment (EIA)
Notification dated 14.09.2006 – Schedule, Item No.8 – Interpretation
of ‘built up area’ – In the instant application, the issue involved
D was whether non-consideration of judgment delivered by a three-
Judge Bench in *NOIDA Park case 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 Notification dated 14.09.2006
– The contention raised on behalf of the applicant was that since
the three-Judge Bench in Para 84 of the judgment in *NOIDA Park
E
case observed that EIA Notification dated 14.09.2006 called for a
closer second look by the authorities concerned especially in respect
of the projects/activities falling within the ambit of Items 8(a) and
8(b) of the Schedule to the Notification which needed description
with greater precision and clarity and the definition of built up area
F with facilities open to the sky needed to be freed from its ambiguity
and vagueness, the two-Judge Bench in the instant case which
delivered the judgment was bound by the said judgment and could
not have held that Notification dated 14.09.2006 showed that all
constructed area which is covered and not open to the sky, has to
G be treated as built up area – Held:*NOIDA Park case was
concerning a huge park – The main dispute in *NOIDA Park case
was whether the project was a building and construction project or
a township and area development project – It was held in*NOIDA
Park case that it was a township and area development project –
H
220
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. v. UNION OF INDIA 221
THR. SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS

While considering this dispute, the Court had felt that there was A
some ambiguity – However, this dispute did not arise in the case in
hand – The second point urged before the Court in *NOIDA Park
case was that the facilities open to the sky i.e. the activity area
should also be included in the built up area and it was this confusion
which the court wanted the Central Government to settle – No party B
had raised any contention in *NOIDA Park case about the covered
area being built up area – All the parties were ad idem that covered
construction was built up area and the Court also held so – This
Court in this judgment has only held that all covered construction
shall be deemed to be built up area and that the municipal laws
C
regarding Floor Space Index (FSI) or Floor Area Ratio (FAR) have
no relevance – This issue did not arise in *NOIDA Park case –
Therefore, the earlier judgment will have no impact on the instant
case – Application dismissed.

*Re: Construction of Park at Noida Near Okhla Bird D
Sanctuary & Ors. (2011) 1 SCC 744 : [2010]
15 SCR 783 – referred to.

Case Law Reference

[2010] 15 SCR 783 referred to Para 1 E
CIVIL APPELLATE JURISDICTION: Interlocutory Application
No. 64665 of 2019 in Civil Appeal No. 10854 of 2016.

From the Judgment and Order dated 27.09.2016 of the National
Green Tribunal (Western Zone) Bench, Pune in Application No. 184 of F
2015.

A. N. S. Nadkarni, ASG, Mukul Rohatgi, Ranjit Kumar, Ms. Sonia
Mathur, Sr. Advs., Venkita Subramoniam T. R., Rahat Bansal, Mehul
Gupta, V. Mudgal, Rohit Raj, Shankey Agrawal, Mukesh Verma, Pawan
Kumar Shukla, Yash Pal Dhingra, Makarand D. Adkar, Vijay Kumar, G
Ms. Aparna Jha, Nitin Lonkar, Ms. Sonali Suryawanshi, Shankey Agrawal,
D. L. Chidananda, Ms. Suhasini Sen, G. S. Makker, Dr. Nishesh Sharma,
Ranjan Kumar Chaurasia, Gurmeet Singh Makker, Nishant Sharma,
Nishant Ramakantrao Katneshwarkar, Aman Varma, Advs. for the
appearing parties. H
222 SUPREME COURT REPORTS [2019] 12 S.C.R.

A The following Order of the Court was passed:
ORDER
1. The only issue involved in this application is whether non-
consideration of a judgment delivered by a three-Judge Bench in Re:
Construction of Park at Noida Near Okhla Bird Sanctuary & Ors.1,
B
hereinafter referred to as ‘NOIDA Park case’, 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. The relevant portion
of the notification reads as follows:
C
(1) (2) (3) (4) (5)

8 Building/Construction projects/Area Development
projects and Townships

8(a) Building and >20000 sq. mtrs. #(built up area for
D Construction And <1,50,000 sq. covered
projects mtrs. Of built-up construction;in the
area# case of facilities
open to the sky, it
will be the activity
area)

E 8(b) Townships and Covering an area ++All projects under
Area Development >50 ha and or built Item 8(b) shall be
projects up area >1,50,000 appraised as
sq. mtrs. ++ Category B1.

F 2. While interpreting this clause, one of us (Deepak Gupta, J.)
held as follows:
“13. From a bare perusal of the two hash tags (#) in Column 4
and 5 of Item 8(a), it is apparent that what is shown under Column
5 is actually a continuation of Column 4 and basically it describes
G or defines ‘built up area’ to mean covered construction and if the
facilities are open to the sky, it will be taken to be the activity
area. This by itself clearly shows that under the notification of
2006, all constructed area, which is covered and not open to the

1
H (2011) 1 SCC 744
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. v. UNION OF INDIA 223
THR. SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.

sky has to be treated as ‘built up area’. There is no exception for A
non-FSI area.
14. Indeed, 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 B
EC is to be 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
C
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, D
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.
E
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.”
3. The contention raised on behalf of the applicant is that since
the three-Judge Bench had in Para 84 of the judgment in the NOIDA
Park case observed that the EIA Notification dated 14.09.2006 calls F
for a close second look by the authorities concerned especially in respect
of the projects/activities falling within the ambit of Items 8(a) and 8(b)
of the Schedule to the Notification which need to be described with
greater precision and clarity and the definition of built up area with
facilities open to the sky needs to be freed from its present ambiguity G
and vagueness, the two-Judge Bench which delivered the judgment was
bound by this judgment of three-Judge Bench and could not have held
that the Notification dated 14.09.2006 clearly shows that all constructed
area which is covered and not open to the sky, has to be treated as built
up area.
H
224 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 4. Though the observations in Para 84, at first blush, support the
contention of the applicant, one has to appreciate the factual background
in which these observations were made. In the NOIDA Park case, this
Court was asked to intervene and halt a project in which a huge park
was being constructed. As far as Item 8(a) of the Schedule to theEIA
Notification, 2006 is concerned, the contentions in this regard start from
B
Para 38. TheMoEF took the stand that no environmental clearance was
required because the project area was 33.43 hectares, which was less
than 50 hectares and the built up area was 9542 sq. mtrs., which was
less than 20,000sq. mtrs.
5. It was contended on behalf of the petitioners and the amicus
C curiae that the project would fall under Section 8(a) because though the
covered construction of the project was only 6999.50 sq. mtrs., the project
by its very nature provided facilities open to the sky and the whole of
this open area, which was activity area, should be treated as the built up
area. The park consisted of certain constructed structures like pathways,
D walkways, statues, fountains, etc. which were open to the sky and treated
as activity area. The contention of the amicus curiae and the petitioners
who were objecting to the project was that the construction which was
open to the sky and was to be treated as activity area should also be
considered as part of the built up area.
E 6. The main dispute in the NOIDA Park case was whether the
project was a building and construction project or a township and area
development project. This Court held that this was a township and area
development project. While considering this dispute the Court felt that
there was some ambiguity. This issue did not arise in the case in hand.
The second point urged before the Court was that the facilities open to
F the sky i.e. the activity area should also be included in the built up area
and it was this confusion which the court wanted the Central Government
to settle. No party had raised any contention in the NOIDA Park
caseabout the covered area being built up area. All the parties were ad
idem that covered construction was built up area and the Court also held
G so.
7. This Court in this judgment has only held that all covered
construction shall be deemed to be built up area and that the municipal
laws regarding Floor Space Index (FSI) or Floor Area Ratio (FAR) have
no relevance. This issue did not arise in the NOIDA Park case.
H
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. v. UNION OF INDIA 225
THR. SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.

Therefore, in our opinion, the earlier judgment will have no impact A
on the present case.
Reference was also made to Notification dated 04.04.2011 and
the Clarification dated 07.07.2017. These have already been dealt with
in the judgment dated 10.08.2018 and those were not points of issue in
the NOIDA Park case. Therefore, we find no merit in the application B
and the same is dismissed accordingly.

Devika Gujral I.A. dismissed.

C

D

E

F

G

H