Arijit Pasayat, J. - (1.) The present IAs relate to acceptability of the report given by the Expert Committee relating to alleged violation of the environmental norms by the respondents.
(2.) Background facts in a nutshell are as follows: The Delhi Development Authority (in short the DDA) proposed the development of International Hotel Complex on 315 hectares of land situated in the Vasant Kunj area after the same area was identified in the Master Plan for Delhi 2001 for urban use. According to the applicants, the said area under the earlier Master Plan 1962 was identified as green area but there was a change of user to urban area under the latter Master Plan i.e. Master Plan 2001. DDA planned to develop the said area for construction of Hotels, Convention Centres etc. Initially, by an order dated 13.9.1996 this Court directed inter alia as follows: "The proposal of the Delhi Development Authority (DDA) called International Hotels Complex (Complex on 315 hectares of prime land situated in South Delhi is before us for consideration. In the affidavit filed by Mr. Arun Khaisalkar, Commissioner (Planning, (DDA, the details of the development in respect of the said 315 hectares has been given. It is not disputed that the Master Plan of Delhi 2001 was amended on June 17, 1995 whereunder out of the total area of the complex the area assigned for residential purposes was reduced from 100 hectares to 49 hectares and for commercial purposes increased from 8 hectares to 65 hectares. Apart from that 39 hectares have been earmarked for public and semi-public, 15 hectares for transportation and remaining 147 hectares for recreational purposes. It is stated in the affidavit that there is an acute shortage of tourist accommodation in Delhi and as such it is necessary to provide sites for 4/5 Star Hotels, Institutions, Hospital, Shopping Mall etc. It is further stated that the Complex area is not a part of the Ridge. It is about 2 Km. away from Southern and South Central Ridge. We have heard Mr. V.B. Saharya, learned counsel for DDA and also Mr. P.C. Jain, Consultant, Planner, DDA. We have heard Mr. Mehta, Dr. Rajiv Dhawan and other learned counsel assisting us in this matter. Mr. Sunder Subramanian, Member of Citizens for the South Western Lake Wilderness and Others and of PILSARC, has filed an affidavit pursuant to this Courts order dated September 4, 1996. It is stated in the affidavit that the area is topographically a part of the South Ridge which is to South Delhi what the Central Ridge is to Central Delhi. It is further stated in the affidavit that the area is lake studded covering over 1000 acre. The affidavit indicates that the area was kept green under the 1962 Master Plan in the Draft -onal Plan of 1993 (-DP -one 121993---P/F/93-52) of the DDA 2001 Master Plan. It is further stated that this area is the natural extension of Sanjay Van a notified reserve forest and a part of Ridge. Along with the affidavit, various photographs have been attached to depict the ecology of the area. This Court in Vellore Citizens Welfare Forum vs. Union of India and Ors. (JT 1996 (7) SC 375) has observed that the development and environment protection must go together. There should be balance between development and environment protection. It is, therefore, necessary that before the proposed Complex of the DDA is brought into execution, it should have environment clearance from the authorities concerned. The whole of the area has to be surveyed from the point of view of environment protection. In other words, the environment impact assessment of the area has to be done by the experts. We are of the view that the authority contemplated by Section 3(3) of the Environment (Protection) Act, 1986 (the Act) can be the only appropriate Authority to look into the environment protection side of the present project or any other project which the DDA or any other Authority may initiate in future. Needless to say that the City of Delhi is already highly congested and has been rated by the World Heath Organization as the 4th most polluted city so far as the air pollution is concerned. It is, therefore, necessar that the development in the city should have environmental clearance. We, therefore, direct the Central Government to constitute an Authority under Section 3(3) of the Act and confer on the said authority all the powers necessary to deal with the environmental protection issue arising out of the project in hand or any other project which may in future come under its consideration. The authority shall he headed by a retired Judge of a High Court and it may have other members preferably experts in the field of pollution control and environment protection to be appointed by the Central Government. The Central Government shall confer on the said Authority the powers to issue directions under Section 5 of the Act and for taking measures with respect to the matters referred to in clauses (i, (iii, (iv, (vi, (viii, (ix, (x) and (xii) of sub-section (2) of Section 3 of the Act. The Central Government shall constitute the Authority before October 10, 1996. This Authority shall have the jurisdiction over the National Capital Region as defined under the National Capital Region Planning Act, 1985. Needless to say that the authority so constituted shall keep in view the Precautionary Principle" and other principles laid down by this Court in Vellore Citizens Welfare Forums case (supra). The Authority shall lay down its own procedure. We further direct that till the time the Complex is cleared by the Authority so constituted by the Central Government, there shall be no construction and no development of any kind in the area by the DDA or by any other authority. The DDA can, however, clean the area and plant trees if they so wish. The proceedings initiated on Kuldip Nayars letter are disposed of."
(3.) 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. DDAs 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. 5. As stated earlier in the interim report, the Committee suggests that the Ministry of Environment and 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 (Nos. 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 be 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".;