National Green Tribunanal Act and Real Estate

 

The first part of this two-part blog discussed the facts that led to the filing of appeals before the Supreme Court challenging the NGT’s judgment dated May 4, 2016 and certain key issues discussed by the Supreme Court in its Judgment disposing of these appeals. In this piece, the second part of the two-part blog, we discuss other significant issues that have been dealt with in the Judgment and analyse the findings to deduce the reasoning employed by the Supreme Court in reaching its decision.

Overriding effect of the NGT Act:

  • The Supreme Court has also provided a finding on whether the NGT can issue directions which modify/amend state legislation. In the present case, arguments were advanced on the jurisdictional powers of the NGT by the learned Advocate General, Mr. Uday Holla, appearing on behalf of the State of Karnataka in a connected appeal.
  • It was submitted that the NGT has no power, competence or jurisdiction to consider the validity or vires of any statutory provision or regulation and that the NGT’s order enlarging the buffer zones as provided under the RMP 2015 was liable to be set aside. It was also contended that this enlargement of buffer zones was ordered by the NGT without any legal and scientific basis and had effectively resulted in amendment of the RMP 2015, without there being any challenge to the same or any relief being sought in respect thereof.
  • However, the Supreme Court has held that a Central legislation enacted under Entry 13 of List-I Schedule VII of the Constitution of India will have an overriding effect over State legislations. The Supreme Court further drew reference to Section 33 of the NGT Act, which provides that the provisions of the NGT Act shall have an overriding effect over any other law or any instrument having effect by virtue of any law other than the NGT Act. In thus analysing the overriding effect of the NGT Act, the Supreme Court has held that the NGT while providing for restoration of environment in an area, can specify buffer zones around specific lakes and water bodies, which contradict zoning regulations under state legislations or the RMP 2015.

Applicability of limitation

  • The Respondent No. 9 had contended that Section 14 of the NGT Act prescribes a limitation period of six months and since the cause of action arose on September 30, 2013 when the EC was granted and the Original Application was filed only in March 2014, the Original Application was barred by limitation.
  • The Supreme Court, however, has held that the Original Application was not an application simpliciter under Section 14 of the NGT Act. The documentary evidence in the matter suggested that it related to environmental and ecological degradation in the catchment area of Bellandur Lake and, as such, gave rise to an independent cause of action under Section 15 of the NGT Act, the limitation period for which is five years from the date on which cause of action arises. Observing that the Original Application was, thus, a petition under Section 15 of the NGT Act, the Supreme Court held that the Original Application was well within such prescribed period of limitation.

General direction of expanding buffer zones:

  • With respect to general directions issued by the NGT in its order dated May 4, 2016, which affected the builders/developers in the city of Bangalore, the Supreme Court has observed that the learned senior counsel appearing for the Applicants submitted that there were no objections to set aside these general directions except to the extent those directions related to Respondent No. 9 and Respondent No. 10.
  • Therefore, the Supreme Court has only considered the contentions raised in the civil appeals filed by Respondent No. 9 and Respondent No. 10. The contentions of the appellants in the other connected appeals have not been taken into account by the Supreme Court in view of the lack of opposition by the Applicants to allowing such other connected appeals and accordingly, the general directions in the order dated May 4, 2016 in relation to buffer zones have been set aside.

Implications, Analysis and Conclusion

In view of the Judgment, the Hon’ble Supreme Court has effectively ensured that the buffer zones revert to the limits prescribed under the zoning regulations under the RMP 2015. For ease of reference, a comparative table of the buffer/green zones are provided below:

Buffer Zones as per NGT Order Buffer Zones after the  Judgment i.e. as provided under RMP 2015
Lakes 75 meters 30 meters
Primary rajakaluves 50 meters 50 meters
Secondary rajakaluves 35 meters 25 meters
Tertiary rajakaluves 25  meters 15 meters

 

The Respondent No. 9 and Respondent No. 10, who were in violation of the conditions under the EC and the environment norms in general, have been strictly put to terms by the Hon’ble Court for the ecological damage caused by them thereby confirming the measures taken by NGT under Section 20 of the NGT Act. A total compensation of over Rs. 127 crores will have to be paid by Respondent No. 9 and Respondent No. 10 to the KSPCB as per the order/judgment of the NGT dated May 4, 2016.

However, the Supreme Court has lost the opportunity to lay down the law on retrospective application of directions issued by the NGT for the feeble reason that the Applicants’ counsel had submitted ‘no objection’ to the general directions being set aside.

Further, the Supreme Court ought to have set up a committee to look into the encroachment of all lakes in the city of Bangalore, and to suggest solutions for prevention, restitution and restoration.

The Supreme Court, however, gave an important finding at paragraph 47 of the Judgment which reads “the tribunal while providing for the restoration of environment in an area, can specify buffer zones around specific lakes & water bodies in contradiction with zoning regulations under these statutes or the RMP”. As has been discussed above, the Supreme Court has elaborately deliberated upon the issue of NGT’s jurisdiction in the Judgment. This finding of the Supreme Court seems to suggest that powers are indeed vested with the NGT for issuing directions in future orders which may be specific to particular instances required for restoration of environment in any particular area, notwithstanding any conflict with other laws or regulations. However, it is interesting to note that while providing clarity on the issue of the jurisdictional powers of the NGT, the Supreme Court has conspicuously refrained from applying its findings to the facts of the present case, simply in view of the unsubstantiated lack of objection by the Applicants.

The NGT has recently passed an order/judgment dated December 6, 2018 in Original Application No. 125 of 2017 (Court on its own motion v. State of Karnataka) along with another connected matter, wherein it has issued certain directions in relation to discharge of untreated sewage and other effluents in violation of the Water (Prevention and Control of Pollution) Act, 1974, into Bellandur lake, Agara lake and Varthur lake. Directions were also issued on the basis of the findings of the Committee which included maintaining revised buffer zones. In view of the above finding in the Judgment in relation to powers of the NGT, the directions of the NGT in the order/judgment dated December 6, 2018 will continue to be operative and cannot be deemed to be set aside in view of the Judgment.


 

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Photo of Namrata Kolar Namrata Kolar

Partner in the Real Estate and Disputes Resolution practice at the Bangalore office of Cyril Amarchand Mangaldas. Namrata has advised several Indian and overseas clients in both real estate transactions and has represented them in dispute resolution matters. She has expertise in practice of debt recovery, mergers and amalgamations and property/corporate / commercial litigations and real estate development and establishment of corporate campuses. She also advises on general corporate law including on joint venture, shareholders issues, mergers and acquisitions and arbitrations. She can be reached at namrata.kolar@cyrilshroff.com.

Photo of Sharan Kukreja Sharan Kukreja

Senior Associate in the Dispute Resolution practice at the Bangalore office of Cyril Amarchand Mangaldas. Sharan has extensively advised and represented clients before courts/tribunals on litigations and arbitrations involving commercial and transactional issues. He can be reached at sharan.kukreja@cyrilshroff.com.

Photo of Tanvi Kishore Tanvi Kishore

Associate in the Dispute Resolution practice at the Bangalore office of Cyril Amarchand Mangaldas. Tanvi has extensively advised and represented clients before various courts and tribunals in litigation and arbitration matters concerning commercial and property disputes. She can be reached at tanvi.kishore@cyrilshroff.com.

Photo of Sindhu Rao Sindhu Rao

Associate in the Dispute Resolution practice at the Bangalore office of Cyril Amarchand Mangaldas. Sindhu has extensively advised and represented clients before courts/tribunals on litigations and arbitrations involving civil and commercial issues. She can be reached at sindhu.rao@cyrilshroff.com.