National Green Tribunal
Dr Bina Basnett vs State Of Sikkim on 28 February, 2025
Item No.14 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No. 38/2022/EZ
(I.A. No.131/2022/EZ, I.A. No.68/2024/EZ, I.A. No.69/2024/EZ & I.A.
No.120/2024/EZ)
Dr. Bina Basnett alias Shanthi Basnett Applicant(s)
Versus
State of Sikkim & Ors. Respondent(s)
Date of hearing : 28.02.2025
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Mr. Pratap Shanker, Adv. a/w
Mr. Ankit Kumar, Adv. and
Mr. Dipankar Thakur, Adv.
For Respondent(s) : Mr. Basava Prabhu S. Patil, A.G, State of Sikkim a/w
Mr. Sameer Abhyankar, Standing Counsel for Sikkim
Mr. Aarohi Bhalla, Adv.,
Mr.Samarth Kashyap, Adv.,
Mr. Vidhan Vyas, Adv.,
Ms.Yashika Sharma, Adv. and
Mr.Aryan Srivastava, Adv for R-1,3,4,7,9 & 10 (in Virtual Mode),
Mr. Pinaki Misra, Sr. Adv. (in Virtual Mode) a/w
Mr. Kazi Sangay Thupden, Adv. for R-2,
Ms. Mansi Bachani, Adv. a/w
Ms. Gitanjali Sanyal, Adv. for R-6 (in Virtual Mode),
Mr. A.D.N. Rao, Sr. Adv. a/w
Mr. Shubham Upadhyay, Adv. for R-8 (in Virtual Mode),
Ms. Amrita Pandey, Adv. for R-11 (in Virtual Mode),
Mr. Sanjay Upadhyay, Sr. Adv. a/w
Mr. Surya Gupta, Adv. for R-12
ORDER
1. Heard Mr. Pratap Shanker, learned Counsel for the Applicant; Mr. Pinaki Misra, learned Senior Counsel; Mr. A. D. N. Rao, learned Senior Counsel; Mr. Sanjay Upadhyay, learned Senior Counsel; Mr. Sameer Abhyankar, learned Standing Counsel for the parties.
(The final order of this case shall be uploaded in the NGT Website by separate sheets of paper) .....................................
B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM February 28, 2025, Original Application No. 38/2022/EZ (I.A. No.131/2022/EZ, I.A. No.68/2024/EZ, I.A. No.69/2024/EZ & I.A. No.120/2024/EZ) MN 1 Item No.14 Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA (THROUGH PHYSICAL HEARING WITH HYBRID MODE) Original Application No.38/2022/EZ (I.A. No.131/2022/EZ, I.A. No.68/2024/EZ, I.A. No.69/2024/EZ & I.A. No.120/2024/EZ) In the matter of:
Dr. Bina Basnett D/o Mr. P. B. Basnett Ranipool, East Sikkim - 737135 .... Applicant(s) Versus
1. State of Sikkim Through Chief Secretary New Secretariat, Gangtok - 737101
2. Gangtok Smart City Development Limited Through its Chief Executive Officer Sokaythang, Below ICAR office, Gangtok, Sikkim - 737102
3. Department of Mines & Geology Through its Secretary, Secretariat Road, Below Tashiling Secretariat, Government of Sikkim, Gangtok - 737101
4. Urban Development Department Through its Secretary, Government of Sikkim, Paljor Stadium Road, Gangtok, Sikkim - 737101
5. Sikkim State Disaster Management Authority Through Relief Commissioner, Manan Bhawan, Gangtok, Sikkim - 737101
6. Sikkim State Pollution Control Board Through its Chairman, Forest Secretariat, C Block, Deorali, Gangtok - 737102 East Sikkim, India
7. District Magistrate/Collector Upper Sichey Road, Sungava, 2 Gangtok, Sikkim - 737101
8. State Environment Impact Assessment Authority (SEIAA) Through Chairman, Annexel, Top Floor, Kazi Road, Gangtok, Sikkim - 737101
9. Forest and Environment Department, Government of Sikkim, Through Addl. Chief Secretary, Forest Secretariat, Deorali, Gangtok - 737102, East Sikkim
10. Gangtok Municipal Corporation Through Municipal Commissioner Near Deorali Stand, Gangtok, Sikkim - 737101
11. Ministry of Environment, Forest and Climate Change Through Secretary, Indira Paryavaran Bhawan, Jor Bagh, Lodhi Colony, New Delhi
12. West Point Infrastructure Private Limited Through its Authorised Signatory, 3rd Mile, Sevoke Road, Siliguri - 734008 .... Respondent(s) Date of hearing and reserving of order: 28.02.2025 Date of uploading of order on NGT Website: 28.03.2025 CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER For Applicant(s) : Mr. Pratap Shanker, Adv. a/w Mr. Ankit Kumar, Adv. and Mr. Dipankar Thakur, Adv.
For Respondent(s) : Mr. Basava Prabhu S. Patil, A.G.State of Sikkim a/w Mr. Sameer Abhyankar, Standing Counsel for Sikkim, Ms.Yashika Sharma, Adv. And Mr. Aryan Srivastava, Adv. for R-1,3,4,7,9 & 10, Mr. Pinaki Misra, Sr. Adv. (in Virtual Mode) a/w Mr. Kazi Sangay Thupden, Adv. for R-2, Ms. Mansi Bachani, Adv. a/w Ms. Gitanjali Sanyal, Adv. (in Virtual Mode) for R-6, Mr. A.D.N. Rao, Sr. Adv. (in Virtual Mode) a/w Mr. Shubham Upadhyay, Adv. for R-8 Mr.Sanjay Upadhyay, Sr. Adv. a/w Mr. Surya Gupta, Adv. for R-12 3 ORDER
1. The Applicant has filed the Original Application seeking a direction to completely scrap the construction related projects in the State of Sikkim which are against ecology and environment of the State. It is also prayed that construction of Multi-level Car Parking-cum- Commercial Development at Old West Point of School area, be immediately stopped and a direction be given to revoke the permission granted for construction of the above mentioned car park of 14 [11+3 (proposed)] storeyed building in Gangtok, Sikkim.
2. The contention of the Applicant is that the Respondent No.12, MESASO Infrastructure Private Limited, is constructing a 14 storeyed Multi-level Car Park and also creating a Commercial Hub which is in violation of the Government of Sikkim, Department of Mines and Geology, Gangtok, Notification No. 17/DMG/20-21 dated 19.03.2021, copy of which has been filed at page no. 129 (Colly) of the paper book. Mr. Pratap Shanker, the learned Counsel for the Applicant submitted that this Notification provides that in the Stability Zone-1 the admissible number of floors is 5 ½ whereas the proposed Multi-level Car Paring-cum-Commercial Hub is a 14 storeyed building.
3. The Original Application was dismissed by the Tribunal vide order dated 10.05.2022 on grounds of alternative remedy. The NGT order dated 10.05.2022 reads as under :-
ORDER
1. Heard Mr. Pratap Shanker, learned Counsel appearing for the Applicant.
2. This Original Application has been filed by the Applicant, seeking a direction to completely scrap the construction related projects in the State of Sikkim which are against the ecology and environment. It is also prayed that construction of Multi-level Car Parking-cum-Commercial Development at Old West Point of School 4 area, be immediately stopped and a direction be given to revoke the permission granted for construction of the above mentioned car park of 14 [11+3 (proposed)] storeyed building in Gangtok, Sikkim.
3. The Contention of the Applicant is that the Respondent No.12, MESASO Infrastructure Private Limited, is constructing a 14 storeyed Multi-level Car Park and also creating a Commercial Hub which is in violation of the Government of Sikkim, Department of Mines and Geology, Gangtok, Notification No. 17/DMG/20-21 dated 19.03.2021, copy of which has been filed as Annexure-A-4 (page no. 129 of the paper book) to the Original Application. The learned Counsel for the Applicant submitted that this Notification provides that in Stability Zone-1 the admissible number of floors is 5 ½ whereas the proposed Multi-level Car Paring-cum- Commercial Hub is a 14 storeys building.
4. We put a query to the learned Counsel as to what is the stage of the construction. The learned Counsel submits that it is still at the foundational stage but he added that the Cabinet has taken a decision that the construction should be of 14 storeys, therefore, there would be violation of environmental laws and degradation of environment and, therefore, the Tribunal would be justified in interfering at this stage.
5. We are not satisfied that at the foundational stage of the proposed construction of Multi-level Car Parking-cum-Commercial Hub, it can be said that there is environmental degradation or violation of environmental laws. The construction has not yet reached 5 ½ storeys. We are, therefore, of the view that this Original Application is absolutely premature and that the Applicant has no cause of action to maintain this Original Application on the assumption that there would be violation of environmental laws or of Government of Sikkim notification at a future date.
6. We also queried from the learned Counsel as to whether any Environmental Clearance had been granted for this construction project. The learned Counsel submitted that he has no knowledge of this fact.
7. Mr. Sanjay Upadhyay, learned Counsel has put in appearance on behalf of the Respondent No.12, MESASO Infrastructure Private Limited, and submits that for this project Environmental Clearance has been granted on 25.02.2022.
8. This Environmental Clearance has not been filed along with the Original Application. We are of the view that if Environmental Clearance has been granted for this project, the Applicant has a 5 remedy by way of appeal challenging the said Environmental Clearance.
9. The Original Application No. 38/2022/EZ is accordingly dismissed on ground of alternative remedy.
10. The I.A. No. 131/2022/EZ is also disposed of.
11. There shall be no order as to cost."
4. The aforesaid order was challenged by the Applicant before the Hon'ble Supreme Court in Civil Appeal No.___ of 2023 ( @ Diary No.32544/2022) and the Hon'ble Supreme Court vide its order dated 25.09.2023 allowed the Appeal and remanded the matter to the National Green Tribunal with the observation that all pleas and contentions of the parties are left open.
5. The order of the Hon'ble Supreme Court dated 25.09.2023 reads as under :-
"In the Supreme Court of India Civil Appellate Jurisdiction Civil Appeal No.___ of 2023 (@Diary No.32544/2022) Bina Basnett Appellant(s) Versus State of Sikkim & Ors. Respondent(s) ORDER Delay condoned.
This appeal impugns the order dated 10.05.2022 passed by the National Green Tribunal (NGT), Eastern Zone Bench, Kolkata. Paragraph 5 of the impugned order states that the proceedings initiated before the NGT were premature, as the construction, subject matter of the proceedings, had not yet reached 5½ storeys. We do not agree with the said finding and reason to dismiss the petition, as the construction post the permissions had admittedly commenced. It is informed at the bar that the construction is now complete.
Without expressing any opinion on the merits of the case, we set aside the impugned order and restore O.A. No.38/2022/EZ to its original position, to be decided afresh without being influenced by impugned order.
Learned counsel for the respondents have submitted that there has been a considerable delay in listing of the present appeal on account of lapses on the part of the appellant - Bina Basnett. This is disputed by 6 the appellant - Bina Basnett, who also submits that the plea is contradictory. We express no opinion in this regard. As an order of remand, hearing and decision is being passed, all pleas and contentions of the parties are left open.
The appeal is allowed and disposed of in the above terms. No costs. Parties will appear before the NGT on 18.10.2023, when a date of hearing will be fixed.
Pending application(s), if any, shall stand disposed of.
.....................J. (SANJIB KHANNA) .....................J. (S.V.N. BHATTI) New Delhi;
September 25, 2023."
6. The Applicant had also earlier filed Original Application being No.05/2022/EZ Dr. Bina Basnett alias Shanthi Basnett - versus- State of Sikkim & Ors. and it is stated that in the said Original Application, the name of the alleged illegal construction site was inadvertently mentioned as Multi Level Car Parking cum Shopping Hub (STNM-Kanchenjunga Square below NH) at Old West Point School Area, near Hotel Hungry Jack, Gangtok instead of correct construction/project site being "Multi-Level Car Parking cum Commercial Development at Old West Point School Area". It is stated that on the prayer of the Applicant the Original Application No.5 of 2022 was dismissed as withdrawn by the Tribunal vide order dated 02.03.2022 and therefore, the present Original Application No.38/2022/EZ is being filed after annexing proper documents and mentioning the correct construction/project name.
7. It is stated that the Respondent No.2, Gangtok Smart City Development Limited is a public company incorporated on 11.12.2017 which has come up with the plan to build a 14 storey building in the name of making Gangtok a Smart City. It is stated that the Respondent No.3, Department of Mines and Geology is 7 mainly responsible for laying down the law/code with respect to construction of Building in the State of Sikkim. The Respondent No.4 is stated to be one of the departments of the Sikkim Government which is responsible for Urban and Housing Development, State of Sikkim. The Respondent No.12 is stated to be the Concessionaire who has been given responsibility to execute the construction project in question. The contention of the Applicant is that the construction of the aforesaid 14 storey building will have an adverse impact on the entire ecology of the town of Gangtok which is prone to earthquakes, heavy rainfall, landslides, air, water and noise pollution. It is contended that the construction has been initiated without any proper planning and procedure. The allegation of the Applicant further is that the construction in question is in breach of the Gazette Notification dated 19.03.2021 issued by the Department of Mines and Geology, Sikkim wherein construction of any building above 5½ floors is illegal. It is stated that as per the existing Building law/code, a building of more than 5½ storeys in the State of Sikkim is prohibited and the building in question is in violation of the Gazette Notification of the Government of Sikkim dated 19.03.2021.
8. It is also alleged that the construction in question restricts the view of Mount Kanchenjunga from the National Highway as well as some portion of the M.G. Marg ; it is stated that Mount Kanchenjunga is a Guardian Deity for the people of Sikkim and also a centre for Tourist attraction.
9. It is stated that earlier traditional buildings in Sikkim were built either in Ekra or Shee Khim style of upto two stories on account of the fragile ecology of the area but recently multi storied buildings have started coming up in Gangtok of upto 8 storeys in a quake prone area which poses a danger not only to the local ecology and 8 environment but also to the life and limb of the residents of Gangtok City.
10. In para 4.11 of the Original Application it is stated that the main grievance of the Applicant is the grant of sanction to the Gangtok Smart City Development Limited by the State Government to construct a 14 [11+3 (proposed)] storey building in Gangtok. It is alleged that RCC construction of a 14 [11+3 (proposed)] storey building will add chemical contents in the fragile ecology of Gangtok.
11. It is stated that Himalayan ecosystem is vulnerable and susceptible to the impacts and consequences of changes on account of natural causes. It is stated that in 1934, a major earthquake struck in January along the Bihar-Nepal border ; in September 2009 Bhutan earthquake of Rt. 6.1 ; in February 2006, Sikkim earthquake of Rt. 5.3 ; in August 1988 Bihar-Nepal earthquake of Rt. 6.5 ; and in November 1980 Sikkim earthquake of Rt. 6.0 had occurred ; it is also stated that in 2011, a strong earthquake of Rt. 6.8 shook Sikkim and Darjeeling areas of India adjoining Nepal leading to severe disaster in the town of Gangtok and nearby areas ; further it is stated that an earthquake measuring Rt. 7.8 struck Nepal in the year 2015 and caused vast devastation killing about 8964 people.
12. It is alleged that the Arithang Ward covering an area of 0.35 sq.km is a major ward within the Gangtok Municipal Corporation and the Seismic Susceptibility map of Arithang suggests that 51%, 26.5% and 22.45% areas are categorized as high, medium and low susceptible seismic zones respectively. It is stated that the Arithang and Indira Bye-pass are just below the proposed construction site which is under imminent threat of major disaster due to the construction of the building in question.
9
13. Mr. Pratap Shanker, learned Counsel for the Applicant has referred to Clause 2.1.6 of the request for Proposal Document of the Respondent No.2 and submits that in accordance thereof, the Respondent No.12 was formed by M/s Tirupati Private Limited as a Special Purpose Company for implementation of the Multi Level Car Parking cum Commercial Development at Old West Point School Area on Public-Private Partnership (PPP) and Design, Build Finance, Operate and Transfer (DBFOT) basis.
14. Learned Counsel submitted that initially the Multi Level Car Parking was to be in four Levels - Level 0 to Level 3 ; Level 0 and Level 1 shall be ordinary parking floors to be handed over to the Authority for running the intercity stand ; Level 2 and Level 3 shall be puzzle/stack parking within the revenue streams of the Concessionaire. Commercial Development (CD) was to be over an area of 13680 sqm. In seven Levels - Level 4 to Level 10 ; the areas being indicated and deviation will be allowed upto +/- 10% at the DPR stage and subject to approval of the Gangtok Smart City Development Limited (GSCDL). The estimated cost of the project was to be Rs.294.98 crore including contingency, loan processing fees, stamp duty and registration fees and cost escalation etc.
15. The learned Counsel then referred to the Government of Sikkim, Department of Mines and Geology, Gangtok Notification dated 19.03.2021 which provides that the maximum height of buildings constructed in allotted sites or private holdings within a notified area shall be in accordance with the suitability and profile of the locations based on the stability map of the area as prepared by the Mines and Geology Department from time to time.
16. The stability zone was divided into six zones showing the admissible number of floors for each zone. Zone 1 provided for 5½ storey ; Zone 10 2 provided for 4½ storey ; Zone 3 provided for 3½ storey ; Zone 4 provided for 2½ storey ; Zone 5 provided for 1½ storey; in Zone 6 no construction is allowed. The Notification also notified the parameters for determination of stability zones of each zone known as site stability zonation parameters to be followed strictly. Zone-1 reads as under :-
"Zone 1 Rock Properties: Bed rock/parent soil is expected at foundation depth. Unweathered/surficial weathering, compact with no joint spacing, moderate to high compressive strength, high frictional resistance.
Built up area : Training of jhoras/drains have been completed and done properly (with safe distance) Overburden : Thin to medium thick having good bearing capacity of soil.
Bearing Capacity : > 35 T/m2 Ground Water Activity : Now Relation between Natural Slope And Rock Bed/ Foliation :
Favourable, >300 Adverse Geo-Environment : Nil Upslope Pressure : Nil Vibration Impact : Minimum Slope : Gentle to moderate. <150 Depth of Soil : <3m Relative Relief : <100m Hydrological Conditions : Dry/nil Category : Suitable after taking appropriate measures to slope/precautionary and preventive measures as the time of foundation levelling."
17. The Notification further provided that the Department will be reviewing the zonation ratings on given conditions. The conditions and pre-requisite for review of site stability report/up-gradation of Land Stability Zonation for particular site are as under :-
1. Recommendation suggested in site stability report should be adopted during construction of structures.
2. Training of untrained Jhora and maintenance at regular intervals which is located adjacent to the plot.11
3. Construction of structure below the building which was barren before which also aids in improving the stability of the upslope areas. Further, construction of building in the downslope area also acts a retaining/protective wall for the houses located in the upslope area.
Minimum of three (03) years after the completion of house construction so as to observe the incidences of differential settlement as per the IS Code of Practice for calculation of settlements of foundations (IS Code:- 8009(Part 1)-1978 (Reaffirmed 2003)). The review of the rating on zonation can be done.
Proper channelization of surface runoff by providing catchment drains especially during the rainy seasons and connect it to natural waterways/Jhora which also improves the stability of the area due to reduced erosions and percolation of water in the slope concerned.
Any site improvement activities/works like grouting/micro- pilling/retaining works/rock bolting/anchoring/shot creting works as per site requirement has been done in the area which will re-strengthen the stability condition shall be entertained for review of stability zonation rating."
18. The learned Counsel for the Applicant vehemently submitted that though initially the project was proposed for 11 floors but subsequently and quite illegally the height of the construction in question was raised to 14 storeys in violation of the government of Sikkim Notification dated 19.03.2021. The learned Counsel further submitted that though the construction in question falls in Zone-1, the permissible number of floors in Zone-1 is 5½ storeys, therefore, even otherwise 11 floors as previously scheduled could not have been constructed and in any case 14 floors could not have been constructed.
19. The learned Counsel also referred to the Annexure R/12, Minutes of Meeting ('MoM' for short) and Site Inspection of the site in question held on 23.01.2024 and referred to the discussion at point No.1 12 which mentions that the Concessionaire informed that all documents have been submitted to the Mines and Geology department but the department has informed that all documents are required to be resubmitted to Mines and Geology including the supporting documents of Jadavpur University certificate. The earlier certificate issued by the Jadavpur University was also brought to the notice of the department for other purposes ; the representative present in the meeting suggested that all relevant documents including application mentioning the vetting/validation of the certificate from the Jadavpur University need to be submitted to the Mines and Geology department and the Department will process for necessary action.
20. The Action Points on this discussion in the MoM mentions that the documents requesting for vetting and validation of the certificate from Jadavpur University has been submitted to the department ; the department will reverify the documents and vetting of the report shall be submitted to the Committee in the next meeting.
21. The learned Counsel submitted that thereafter there is nothing on record to show whether any decision was taken by the Mines and Geology Department or any decision was taken by the Committee.
22. The learned Counsel then next referred to the letter dated 31.12.2021 addressed by the Respondent No.12 to the Additional Director, Mines and Geology Department, Government of Sikkim wherein it is mentioned that as Sikkim lies over young fold mountains in Seismic Zone IV, with fragile geological conditions, micro seismic studies in the area and Load Impact Assessment of the surrounding areas is to be carried out prior to construction of Multi Storied Structure and provide suitable mitigation measures, if required, to avoid future complication and in this regard, the Respondent No.12 had approached its Structural Consultant and 13 has been issued a certificate. The copy of the certificate dated 30.12.2021 has been filed at page 641 of the paper book which mentions that Site Specific Micro Seismic Studies is not required as per the soil test report of M/s Geo Informatic Consultancy & Services Tandong, Gangtok. Average N value is 22 and as per the IS-1893 if the soil corrected N value is more than 15 then specific seismic studies are not required. The certificate dated 30.12.2021 reads as under :-
"S.P.A. Consultants Consulting Structural Engineers To The Director Date: 30.12.2021 Mesaso Infrastructure Pvt. Ltd.
3rd Floor, Vega Circle Mall, 3rd Mile, Sevoke Road, Siliguri - 734001 Sub : With Reference to Site Stability Report Ref.No. 1/62(3)DM&G/21-22/478 dated : 29-12-2021 Sir, With reference to the above subject Matter Site Specific micro Seismic studies is not required as per the soil test report of M/S Geo Informatic Consultancy & Services Tandong, Gangtok average N value is 22 and as per the IS-1893 if the Soil corrected N Value is more than 15 then specific seismic are not reauired.
Thanking you, For S. P. A. Consultants Sanjiv J. Parekh"
23. The learned Counsel for the Applicant therefore insisted that no Seismic Studies were carried out by the Consultancy Services engaged by the Respondent No.12 which was mandatory particularly in a place like Gangtok which lies in Seismic Zone-IV and therefore, the entire construction is suspect.
24. The learned Counsel for the Applicant also referred to the document dated 25.02.2022 (page 1252 of the paper book) which is a letter issued by the Department of Forest and Environment, Government 14 of Sikkim to be complied with during construction phase and post implementation stages by the Project Proponent. Para 1 thereof which was specifically referred to by the learned Counsel for the Applicant reads as under :-
"The official permissible height for building in Sikkim is 5½ for domestic and 7 for Commercial purpose as per the existing bye laws in Sikkim. However, the Project Proponent has procured Certification from Mr. Majumdar of Jadavpur University for construction of 11 storeys building. The SEAC informed the PP to get this certification to be validated/vetted by Mines & Geology Department, Government of Sikkim."
25. We find that this document is appended to the Environmental Clearance dated 25.02.2022 granted by SEIAA, Sikkim for the project in question. the Environmental Clearance itself has not been challenged by the Applicant.
26. Mr. Sanjay Upadhyay, learned Senior Counsel appearing for the Respondent No.12, the Concessionaire raised a preliminary objection that the reliefs claimed in the Original Application cannot be granted since the construction of the Multilevel Car Parking cum Commercial Development at Old West Point School area has already been completed and therefore, the question of revoking permission already granted for construction of the above mentioned 14 [11+3 (proposed)] story building in Gangtok area does not arise and the Original Application has become infructuous. The prayer in the Original Application reads as under :-
"a. Direct the Respondent Nos.2 and 12 to immediately stop the construction of Multi-level Car Parking cum Commercial Development at Old West Point School Area; and or b. Direct the Respondents to revoke the permission granted for the construction of the abovementioned 14 [11+3 (proposed)] storey Building in Gangtok area; and/or 15 c. Scrap the complete construction related projects in the state of Sikkim which are against the ecology and environment of the area; and/or d. Direct the Respondents to strictly comply with all the environment related Rules, Bye-laws and Guidelines before giving permission for any development/construction project in the State of Sikkim; and/or e. Pass such further order/orders as the Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
27. The learned Counsel further submitted that the Tribunal on the second Original Application No.38/2022/EZ, filed by the Applicant, had passed an order dated 10.05.2022 observing that since Environmental Clearance for the project has already been granted on 25.02.2022 and the same has not been challenged in the Original Application No.38/2022/EZ, the Applicant has a remedy by way of appeal challenging the said Environmental Clearance and vide order dated 10.05.2022 the Original Application No.38/2022/EZ was dismissed. Learned Counsel submitted that instead of challenging the Environmental Clearance, the Applicant chose to approach the Hon'ble Supreme Court against the said order of National Green Tribunal dated 10.05.2022 and the Hon'ble Supreme Court vide order dated 25.09.2023 remanded the matter to the Tribunal for hearing and decision observing that all pleas and contentions of the parties are left open. Learned Counsel submitted that in spite of the order of the Hon'ble Supreme Court, the Applicant in the present Original Application has not amended his Original Application or sought to challenge the Environmental Clearance and is raising issues with regard to the stability of the project vis-à-vis seismic zone and load bearing capacity of the site in question. Learned Counsel further submitted that Consent to Establish (CTE) was also granted to the project in question by the Sikkim Pollution Control Board and 16 if the Applicant was aggrieved by the same, he had a statutory remedy by way of Appeal challenging the same, but remedy of statutory appeal has also not been availed by the Applicant and therefore, the present Original Applicant is not maintainable.
28. Mr. Upadhyay further submitted that the order of the National Green Tribunal dated 10.05.2022 was challenged by the Applicant in the Hon'ble Supreme Court through Civil Appeal Diary No.32544 but the Applicant chose not to cure the defects noted by the Registry of the Hon'ble Supreme Court on 14.10.2022 which was cured only on 25.08.2023 i.e. after about ten months and during this period, the entire construction of the Multi Level Car Parking cum Commercial Development at Old West Point School area i.e. the construction in question, had already been completed and therefore, the relief prayed in the present Original Application cannot be granted and the Original Application should be dismissed as having become infructuous.
29. Similar objection have been taken by the learned Advocate General appearing for the State of Sikkim, Senior Counsel Mr. Pinaki Mishra and Mr. A.D.N. Rao appearing for the other Respondents.
30. Mr. Pratap Shanker, learned Counsel for the Applicant meeting the preliminary objections of the Respondents submitted that the construction in question has been raised in a Seismic Zone which is prone to earthquake without any Seismic Study Report from the Department of Geology and Mines, Government of Sikkim and therefore, vital and substantial questions relating to environment are involved in the present case which are required to be adjudicated by this Tribunal.
31. We have given our anxious considerations to the submissions made by the learned Counsel for the parties and we are of the view that 17 even though the Environmental Clearance granted to the project in question has not been challenged by the Applicant but the question relating to Seismic Study and Load Bearing Capacity of the site in question can be examined by this Tribunal within the scope of Section 14 of the National Green Tribunal Act 2010.
32. Mr. Sanjay Upadhyay, learned Senior Counsel submitted that the Respondent No.12 is a Special Purpose Vehicle (SPV), a company registered under the Companies Act 2013 which has been formed for the purpose of implementation and establishment of multi level car parking cum commercial development at Old West Point School area in the City of Gangtok over a built up area of 33801.25 sqms ; the proposed integrated commercial cum multi level car parking project including hotel and allied services is a 14 storey building which is being developed as a Public Private Partnership (PPP) on Design, Build, Finance, Operate and Transfer (DBFOT) basis ; the said project is an initiative of the Respondent No.2, Gangtok Smart City Development Limited under the Smart City Programme keeping in view the unprecedented growth in the number of motor vehicles, specially taxis and cars along with concentration of activities which has led to acute parking problems in Gangtok City area thereby creating congestion and consequent pollution by vehicles ; the said project would cater to 400+ number of taxis and cars ensuring smooth and automated integration with the city traffic. It is stated that the Respondent No.2 had identified an existing multi-level car parking for demolition and upgradation into a state of the art modern multi-level car parking cum commercial development at Old West Point School area near M. G. Marg in the City of Gangtok.
33. It is stated that a tender was floated and passed for execution of the said project and for the said purpose the existing Multi Level Car 18 Parking was demolished by another agency through a separate contract and for demolition of the same, the approval of the Cabinet was also provided on 11.06.2021 and No Objection Certificate (NOC) was granted by the Sikkim State Pollution Control Board to the Urban Development and Housing Department (UD&HD), Respondent No.4 herein, vide letter dated 17.09.2021 for the said demolition subject to conditions to ensure foundational security of the project. On 21.09.2021, the Respondent No.4 issued NOC for demolition of the old structures at the present project site. It is stated that on grant of contract to the Respondent No.12 and after demolition of the existing multi-level car parking and removal of all building debris, the land was left with dug up soil with a hollow pit where the soil is loose. It is also stated that since monsoon had started and the site was left vulnerable to the effects of heavy monsoon which posed danger of landslide and related mishap, therefore in pursuance to the conditions made by the Sikkim Pollution Control Board under NOC dated 17.09.2021, the work for securing the foundation of the site by concretizing it with cement was started.
34. We have perused the NOC dated 17.09.2021 at page 1080 of the paper book, issued by the Sikkim State Pollution Control Board addressed to the Respondent No.4 which in Condition No.1 mentions that the Respondent No.4 shall ensure that the Project Proponent carries out the dismantling/demolition work without causing any environmental pollution and that any such dismantling/demolition shall ensure foundational security of the area in question.
35. It is also stated that while the Respondent No.12 had started to undertake the work of securing the foundation of the land, the Applicant filed the Original Application No.05/2022/EZ on 19 31.12.2021 without impleading the Respondent No.12 ; notices were issued by the Tribunal on 18.01.2022 and interim stay was granted ; on 22.02.2022, the Respondent No.12 was impleaded as a party to the said Original Application ; in the meantime, on 24.02.2022, the Sikkim State Pollution Control Board, the Respondent No.6 herein, granted the Consent to Establish (CTE) under the provisions of the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981 ; Environmental Clearance was granted to the project by the State Environment Impact Assessment Authority (SEIAA), Sikkim, the Respondent No.8 on 25.02.2012 ; this fact was brought to the notice of the Tribunal in the reply filed by the Respondent No.12 herein and thereafter the Applicant prayed that the Original Application may be permitted to be withdrawn and the Tribunal dismissed the Original Application as withdrawn vide order dated 02.03.2022 and the interim order also was vacated.
36. Mr. Sanjay Upadhyay, learned Senior Counsel further submitted that the Sikkim Allotment of Housing Sites and Construction of Building (Regulation and Control) Act, 1985 and the Regulations made thereunder as building Byelaws, do not fall within Schedule 1 of the National Green Tribunal Act 2010 and therefore, this Tribunal has no jurisdiction to go into questions relating to violations of the Sikkim Allotment Housing Sites and Construction of Building (Regulation and Control) Act, 1985 or the Byelaws made thereunder. We may answer the preliminary objection at this stage itself by holding that while the said Act of 1985 is not a part of Schedule 1 nor are the Byelaws made thereunder part of Schedule 1 of the NGT Act 2010, but the larger question in relation to environment and environmental issues where a substantial question is raised relating 20 to environment, can always be examined by the Tribunal in view of the provisions of Section 14 of the National Green Tribunal Act 2010. Section 14 of the Act, 2010 reads as under :-
"Section 14 in The National Green Tribunal Act, 2010 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
14. Tribunal to settle disputes.
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in subsection (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days."
37. Mr. Pratap Shanker, learned Counsel for the Applicant submitted that no Seismic Study was carried out prior to sanction of the project nor was any Geological and Geo-Technical appraisal taken. Learned Counsel further submitted that in fact the Load Impact Assessment was never carried out by the Jadavpur University on the ground that the same was not required. Learned Counsel also submitted that similarly, Micro Seismic Study was not carried out as required by Notification dated 29.12.2021. Learned Counsel further referred to the Department of Mines and Geology, Government of Sikkim letter dated 29.12.2021 (page 1983 of the paper book) and submitted that the said letter itself mentions that the proposed site falls under Zone(1) as per the parameters notified by the Department of Mines and 21 Geology vide Gazette No.86 dated 06.04.2021. However, as Sikkim lies over young fold mountains, Seismic Zone IV and with fragile geological conditions, micro seismic studies in the area and Load Impact Assessment of the surrounding areas to be carried out prior to construction of multi-storied structures and provide suitable mitigation measures, if required, to avoid future complications.
38. The learned Counsel then referred to the document dated 30.12.2021 (at page 1984 of the paper book) and submitted that the SPA Consultants in their letter addressed to the Respondent No.12 has stated as under :-
Matter site specific micro Seismic studies is not required as per the soil test report of M/s Geo Informatic Consultancy & Services Tandong. Gangtok average N value is 22 and as per the IS-1893 if the Soil corrected N Value is ≥15 then specific seismic studies are not required.
39. IS-1893 (part-1): 2016 has been examined by us. It has been adopted by the Bureau of Indian Standard after the draft finalized by the Earthquake Engineering Sectional Committee had been approved by the Civil Engineering Division Council under the head "Criteria for Earthquake Resistant Design of Structures". 'N' has been defined as corrected SPT value for soil in para 5 under the head "SYMBOLS"
(page 3079 of the paper book). The desirable minimum corrected field values of 'N' have been specified at page 3083 of the paper book (Page 10 of the IS-1893 part-1) reads as under :-
"The desirable minimum corrected field values of N shall be as specified below:
Seismic Zone Depth (m) N Values Remarks
below Ground
Level
III, IV and V ≤5 15 For values of
≥10 25 depths
II ≤5 10 between 5 m
≥10 20 and 10 m,
22
linear
interpolation is
recommended"
40. Column 1 of the table deals with Seismic Zone ; column 2 deals with depth (n) below Ground Level ; column 3 gives the 'N' Values ;
column 4 gives the remarks.
41. A perusal of the above table would show that Seismic Zone III, IV and V having a depth of ≤5 has 'N' value of 15 and ≥10 has an 'N' Value of 25 and the "remarks" column mentions :
for values of depth between 5 m and 10 m, linear interpolation is recommended.
42. The note under the table also provides that :
If soils of lower 'N' values are encountered than those specified in the table above, then suitable ground improvement techniques shall be adopted to achieve these values.
Alternatively, deep pile foundations should be used, which are anchored in stronger strata underlying the soil layers that do not need the requirement.
43. Though Mr. Pratap Shanker referring to the letter of the SPA Consultants dated 30.12.2021 (page 1984 of the paper book) has raised queries with regard to the average 'N' value of Gangtok being 22 and further that the Report in IS-1893 that if soil corrected 'N' value is more than 15 then specific Seismic Studies are not required, could not dispute the table given in IS-1893 referred to hereinabove.
44. It is not disputed that the foundational depth of the structure in question is 4.5 mtrs. which is confirmed from the document at page 1211 of the paper book and page 1977 of the paper book as stated in the 'Geo-Technical Investigation Report For Proposed Multistoried Building at Gangtok, Sikkim' filed as Annexure-R/12 (page 1937 of the paper book) to the affidavit of the Respondent No.12. Mr. Pratap 23 Shanker, learned Counsel for the Applicant could not dispute the above facts even though he questioned the same in course of his arguments.
45. In this view of the matter, we find absolutely no error in the remarks of SPA Consultants dated 30.12.2021 (page 1984 of the paper book) that if the soil corrected N value is more than 15 then specific seismic studies are not required. The same letter of the SPA Consultants mentions that Gangtok Average N Value is 22 and therefore as per IS-1893 Specific Seismic Studies are not required.
46. Mr. Pratap Shanker, learned Counsel further submitted that Government of Sikkim, Department of Mines and Geology, Gangtok, Notification dated 19.03.2021 lays down the admissible number of floors in Stability Zone-1 as 5½ storeys and therefore the present constructions which was initially proposed for 11 floors and subsequently allowed to continue upto 14 floors is wholly illegal being in violation of the Government of Sikkim, Department of Mines and Geology, Gangtok, Notification dated 19.03.2021.
47. The learned Counsel for the Respondent No.12 submitted that Regulation 39 of the Sikkim Building Construction Regulations, 1991 which was added vide Amendment dated 16.10.2001 provides for relaxation of the said Regulation in the event of genuine difficulties arising out of implementation of any of the regulations in regard to buildings constructed or proposed to be constructed by the Government of Sikkim.
48. The Government of Sikkim, Urban Development and Housing Department, Gangtok Notification dated 16.10.2001 issued in exercise of powers conferred by Sub Section 2 of Section 7 and Section 17 of the Sikkim Allotment of Housing Sites and Construction of Building (Regulation and Control) Act, 1985, 24 Regulation 39 was added to the Sikkim Building Construction Regulations, 1991 by way of amendment. The Notification dated 16.10.2021 reads as under :-
"Government of Sikkim Urban Development and Housing Department Gangtok No.GOS/UD&HD/6(294)2001 Dated: 16/10/2001 NOTIFICATION In exercise of the powers conferred by Sub-section (2) of section 7 and section 17 of the Sikkim Allotment of House Sites and Construction of Building (Regulation and Control) Act, 1985 (11 of 1985), the State Government hereby makes the following regulations further to amend the Sikkim Building Construction Regulations, 1991, namely:-
(1) (1) These Regulations may be called the Sikkim Building Construction (Amendment) Regulations, 2001.
(2) They shall extend to all the notified areas in Sikkim.
(3) They shall come into force at once.
(4) They shall apply to both Government allotted sites and private sites.
(2) In the Sikkim Building Construction Regulation, 1991, (hereinafter referred to as the said regulations), in regulation 17, -
(a) For sub-regulation (I), the following shall be submitted, namel:-
"(i) The maximum height of buildings constructed in allotted sites or private holdings within a notified area shall be in accordance with the suitability and profile of the locations based on the stability map of the area as prepared by the Mines and Geology Department from time to time which shall be as follows:-
Stability zone Admissible number of floors
1. 5½ storeys
2. 1½ storeys
3. 3½ storeys
4. 2½ storeys
5. 1½ storeys
6. No construction is allowed.
Provided that the height of buildings shall be regulated in accordance with the size of the plot allotted or possessed and structural design of the foundation of the proposed building;
(b) after sub-regulation (V) the following sub regulation shall be added, namely: -25
"(vi) Any structure beyond the permissible number of floors or allotted area or approved Blue print Plan completed or under construction on or before the date of notification of these regulations, shall be regularized after payment of regularization fee to be prescribed by Notification by the Government.
3. In the said regulation, after regulation 38, the following regulation shall be inserted, namely:-
39 Power to relax In case of genuine difficulties arising out of the implementation of any of the regulations in regard to buildings or structures proposed to be constructed by the Government of Sikkim or Government of India or any registered organization the State Government reserves the right to relax from application of any of the provisions which it considers justifiable on the merit of each case."
Commissioner-cum-Secretary Urban Development & Housing Department"
49. The learned Counsel for the Respondents submitted that though initially the project was conceived and proposed for 11 storeys, but considering the exigencies of parking and movement of vehicles in the City of Gangtok, on the proposal of the Respondent No.12, the height of the building of the structure in question was permitted to be raised to 14 storeys, duly approved by the Cabinet. It is stated that initially, Environmental Clearance was granted by SEIAA, Sikkim to the project in question on 25.02.2022 for 11 floors subject to specific and general conditions laid down in the Environmental Clearance though the Respondent No.12 had always proposed the construction to be of 14 floors. Subsequently, the matter was considered again by the Cabinet on 25.04.2023 and approval for 3 additional floors was approved by the Cabinet.
50. We may first refer to the Cabinet Memorandum dated 27.05.2021 for the proposed construction of 11 storeyed structure for Multi-Level Car Parking cum Commercial Development at Old West Point School area, Gangtok. At point No.14, the concept drawing referred by the Respondent No.12 herein, proposes :
the construction of 14 number of floors. The bottom 4 floors are to be car parking (MLCP) ; Level 0 and Level 1 as ordinary 26 parking and Level 2 and Level 3 as electro-mechanically operated stacked/puzzle parking. Tentatively the parking is proposed for 415 car parking spaces ; the actual capacity, however, will be known after finalization of the DPR and its approval by the Authority. Rest of the floors will be for Commercial Development (CD) with a maximum carpet area of 13680 sqm. with permissible deviation of +/- 10% ; approval for relaxation of norms for the proposed building having 11 floors subject to confirmation of Geotechnical Investigation Report has been granted in para 21 (VI) by the Cabinet.
51. The Cabinet Memorandum dated 27.05.2021 at page 1904 to 1908 of the paper book (Colly), reads as under :
Government of Sikkim Urban Development Department Gangtok, Sikkim xxxxxxxxxxxxxxxxxxxxxxxxxxc No.215/Secy/UDD/2021 Dated: 27.05.2021 CABINET MAMORANDUM Minister in Charge - Mr. Arun Kumar Upreti Secretary in Charge - Ms. Sarala Rai, I.A.S. Subject: Multi Level Car Parking cum Shopping Plaza at Old West Point School-PPP Project under Gangtok Smart City Development Ltd.
1. The Construction of Mjultilevel Car Parking cum Commercial Development at Old West Point School having its Project ID as SIK GAN 062 is a part of Smart City Proposal under Gangtok Smart City Development Limited.
2. The approval of the Board of Directors of the company has been obtained for implementation of the Project under Public Private Partnership (PPP Mode) on its 17th Board Meeting held on 23rd October 2020.
3. The 1st call for bids for development of a multi level car p;ark cum commercial plaza, by demolishing the existing Taxi Stand as well as the old school buildings in the Old West Point School Complex area was invited on 9th January 2019. Unfortunately, the 1st call for bid was invited without verification of the status of land.
Besides, owing to changed specifications and requirements the entire bidding process was cancelled. The changed criteria/concept of the project, envisages the construction of a structure with Green 27 Building Concept. Moreover, on verification of the title deed of the land, it is found recorded in the name of Private Estate, and a separate file has been processed to acquire the same, in-principle approval of the Government has been obtained for its acquisition.
4. The second call for bids was invited on 07.10.2020. The approval of the Board of Directors of the Company has been obtained for the project, however, as the 'project aspects' requires further administrative considerations, formal approval of the State Government is also being solicited duly highlighting the salient features and aspects related to the project as indicated hereunder.
5. The project is being taken up on PPP mode with an estimated investment of Rs.294.98 crore. As per the requirements for PPP projects, the bid has been evaluated for the lowest viability gap funding (VGF) keeping all other parameters fixed. The financial modelling for the project was done before inviting the bids and the VGF of 37% of the project cost viz, Rs109 crore approx. was considered reasonable.
6. The other fixed parameters are (a) Development period of 4 years,
(b) Lease Rent to be paid by concessionaire @ Rs 1 per sqm per annum of the maximum carpet area, (c) Concession Fee to be paid by Concessionaire @ Rs 1 per accounting year, (d) Operation period of 26 years.
The other parameters have been fixed so as to ensure that bid evaluation is error free; if the bids are invited on multiple parameters, the evaluation and identification of the preferred bidder becomes cumbersome and generally leads to litigation with different parties having different justifications for selection of the preferred bidder.
7. Briefly, the salient features of the Project as per Request for Proposal (Bidding Document( is indicated as follows :-
a. As per the preliminary survey, the land area in the old West Point complex is 5707.80 square metre. b. Proposal envisages construction of 11 storeyed structure. The structure will have four levels of car parking. Level 0 and 1 are ordinary parkings and the upper levels viz. level 2 and 3 will be electro-
mechanically operated stack/puzzle parking, to
accommodate 415 equivalent car spaces,
approximately. The structure shall be 11 storeyed building subject to norms of the Government. The details are tabulated as below :-28
Sl.No. Particulars Details
1. Site Area at Old West point 5707.80 sqm
School
2. Commercial Floor 50%
Coverage
3. Parking Floor coverage <75%
4. Total Nos of Floors 11 storied
5. Lower Parking Floors 4 Nos (Levels :0 to 3)
6. Ground and above (Nos) 7 Nos (Levels :4 to 10)
7. Commercial Carpet area 13,680.00 sqm +/-
(sqm) 10%
8. Parking levels 4 Levels (0,1,2 & 3)
c. The Concessionaire shall be entitled to
construct/develop such components which it deems appropriate from commercial viability point of view provided; however, such component shall not fall in the category of prohibitive item as per Authority or Govt. of Sikkim or Govt. of India, norms or applicable law. Broadly the following components are allowed :-
• Shopping Mall and Multiplex
• Hotel, Food Courts/Restaurants/coffee shop
• Commercial (Retail cum Office) area would
include retail shopping, branded showrooms, anchor stores, and entertainment complex/zone and business spaces.
• Banks, Coaching institutes
• Gaming zone/children play home, Gymnasium
or Health Centre,
• Any other activity with the approval of the
authority.
d. Level 0 and 1 will be handed over to the authority during the operation period and rest of the floors will be with the concessionaire for 26 years of operation after which it is to be handed over to the authority in terms of the agreement. However, the period of operation may be extended by another 26 years subject to approval of the Government, by entering into a separate agreement, the process of which can only be taken up after finalizing the DPR and all aspects of the building known to both the concessionaire and the authority. e. The documents viz., Volume I- Instruction to Bidders, Volume II- Concession Agreement and Volume III- Project Information Memorandum is appended for perusal.
8. The timelines of the Bid process that has been completed is tabulated below:
29
Sl.No. Event Description Date
1 Publication of 2nd Call for Bids 07.10.2020
2 Submission of Queries by Bidders 12.11.2020
3 Pre-Bid Meeting 12.11.2020
4 Reply to Pre-Bid Queries 24.12.2020
5 Submission of Bid 11.01.2021
6 Opening of Technical Bid 11.01.2021
7 Opening of Financial Bid 22.01.2021
8 Letter of Award LOA to the Preferred 15.02.2021
Bidder*
9 Signing of Concession Agreement* 27.02.2021
10 Submission of Performance Security, 26.02.2022
preparation of DPR and its approval
and environmental management plan,
employee deployment plan,
construction / rehabilitation plan etc.
Opening of Escrow Account,
establishment of SPV specifically for
the project, obtaining of permits etc.*
11 Construction and Development period* After approval
12 Operation period* 26 years
* after accord of Government approval
9. An Independent Engineer has to be appointed for overseeing the works during the development period plus first 4 (four) years of operation period, as well as one year before the expiry of the concession period. In the event of termination, such independent Engineer will be appointed to perform such roles as required to complete the termination proceedings. The salary of the Independent Engineer will have to be borne equally by the authority and the concessionaire.
10. Within the indicated timelines, six applicants had submitted their Expression of Interest, for the project and the bid documents were sold to all six applicants :
1. Pave Infrastructure Pvt. Ltd., Salugara, Siliguri
2. Tirupati Plaza Pvt. Ltd., Sevoke Rd., Siliguri
3. Siotia Infratech, HB Road, Guwahati
4. SIBIN Group, Middle Sichey, Gangtok
5. SM Infrastructure Pvt. Ltd, GS Road, Guwahati
6. Mungipa Trade Links Pvt. Ltd, Singtam.
However only the following three submitted their bids for the project quoting the VGF as follows :
1. Pave Infrastructure Pvt. Ltd., Salugara, Siliguri Rs.106.19 cr
2. Tirupati Plaza Pvt. Ltd., Sevoke Rd., Siliguri Rs.103.98 cr
3. Mungipa Trade Links Pvt. Ltd, Singtam Rs.107.67 cr
11. The lowest VGF has been quoted by Tirupati Plaza Private Limited and is the preferred bidder (L1). Accordingly based on the pre-bid estimated cost of Rs.294.98 cr the lowest bid is of 35.25% (Rs.103.98 cr) which is within the estimated VGF. The difference amount of Rs.191 cr has to be invested by the concessionaire. The 30 project development period is of 4 years. The investor (concessionaire) will operate and maintain the asset for 26 years operation period. The VGF will be released as per the terms of the agreement into an Escrow Account created for the purpose. The Bank fees for the Escrow account has to be shared equally by the authority and the Concessionaire. During the operation period, the concessionaire will have complete freedom for O&M including leasing and rental and will remit the prescribed fees to the authority.
12. The VGF has to be released as per the terms of the agreement laid in schedule M: Project Grant to the concessionaire as follows :-
Sl Project % of the Project Grant Project State Central No. Milestone Grant Share Share (Core (50%) (50%) in in crore crore 1 Signing of Rs.294.98X35.25%X15% 15.60 7.80 7.80 Concession Agreement 2 Project Mile Rs.294.98X35.25%X15% 15.60 7.80 7.80 stone-I 3 Project Mile Rs.294.98X35.25%X15% 15.60 7.80 7.80 stone-II 4 Project Mile Rs.294.98X35.25%X15% 15.60 7.80 7.80 stone-III 5 Car Parking Rs.294.98X35.25%X20% 20.80 10.40 10.40 Facility Completion Date 6 Project Mile Rs.294.98X35.25%X05% 5.20 2.60 2.60 stone-IV 7 Project Mile Rs.294.98X35.25%X05% 5.20 2.60 2.60 stone-V 8 Project Mile Rs.294.98X35.25%X05% 5.20 2.60 2.60 stone-VI 9 Commercial Rs.294.98X35.25%X05% 5.20 2.60 2.60 Development Completion Date Total 103.98 51.99 51.99
13. The above matching fund to the ratio of 50:50: is in line with the revised administrative approval approved by the Cabinet vide Memo No: 002/SPV/GSCDL/2018-(II)/203/SECY Dated 15/02/2021. The funds as required as highlighted above for the construction of the project under Smart City Guidelines has to be made available during the Development period which is targeted to be completed within 4 years. However, during the current financial year Rs.31.20 crore will be required to meet the expenditure against SI (1) and (2) for this specific project during 2021-22.
14. The Concept drawing submitted by the preferred bidder proposes the construction of 14 number of floors. The bottom 4 floors are to be car parking (MLCP) ; Level 0 and Level 1 as ordinary parking and Level 2 and 3 as electro mechanically operated stacked / puzzle parking. Tentatively the parking is proposed for 415 car 31 parking spaces : the actual capacity, however, will be known after finalization of the DPR and its approval by the authority. Rest of the floors will be for commercial development with a maximum carpet area of 13,680 sqm with permissible deviation of plus or minus 10%.
15. For the city, this will be the first ever multi level car park with commercial development (shopping mall + hotel) on the upper floors having modern aesthetics and green concepts. It will change the skyline of the city and will be point of tourist interest as well as a convenient place for the city dwellers for shopping and leisure. The facility will have an atmosphere of modern comfort and convenience, cleanliness and hygiene with top quality ambience, whilst enjoying the panorama of the majestic mountains and underlying valleys in the backdrop of the setting sun. It is expected that the living quality index of the city will improve due to this asset. As per the concept, the elevation of the structure is of a reducing building profile, instead of a solid building mass as is generally seen in other building projects; as the building rises in elevation its commercial area will reduce and will have open plazas and green spaces for the public to enjoy. This further justifies the need to add extra floors to compensate the revenue loss on account of the open spaces being kept at the lower levels. Moreover, the structure will have its own sewage treatment plant with partial solar lighting for green energy.
16. As per the bid requirements, Level 4 to 10 shall be commercial development. To achieve open public plazas and green plantation areas, the building floor plate shall be reduced gradually so that every upper level will have reduced floor area as a result. Accordingly, in the concept plan submitted by the preferred bidder, the bidder has proposed for additional 3 floors (Level 11, 12 and
13) on partial horizontal area in order to achieve the required carpet area. This is within the permissible carpet area as mentioned in the tender document. This decreasing or reducing building profile or building mass is also conducive for setting up green spaces on such open areas as well as improved aesthetics and green performance of the building. The proposed commercial development submitted by the preferred bidder comprises of 10 levels ; level 4 to 9 shall be shopping plaza / mall and level 10 to 13 shall be hotel.
17. Also, the bidder has conceived for a plaza of about 600-650 sqmtr. Which will improve the ambience and quality of exposure /experience in the facility. Hence, keeping in view the concept presented by the selected bidder, the extra floors could be 32 considered, subject to the condition that the maximum carpet area of 13680 sqmtr., with a deviation of plus or minus 10% is not exceeded.
18. The actual details with regard to the structure will be availed only after conducting thorough geo-technical investigation, engineering / structural design and architectural drawings by the concessionaire as per the timeline given above which is the DPR stage. Though the preferred bidder has submitted a concept drawing for 14 levels, in view of the RFP, we may at present consider for 11 floors only. Accordingly, approval of the Government is solicited for relaxation of norms to build the structure having 11 floors. However, keeping in view the reduction in the building mass as the floor level rises, we may consider additional 3 floors once clarity is obtained after completion of geo-technical investigation and design reports, as the DPR will have to be approved by the authority later.
19. Status of land at Old West Point :- The construction of Multilevel car parking cum Commercial Development at Old West Point School is to be constructed on plot no.715 & 716 which is found recorded in the name of private Estate as per the verification report received from the Revenue Authorities vide memo no.71/765/G/DD/DD(E) dated 22/02/2021. However, on the request of the Department, the Estate Manager, Private Estate & Authorized Attorney of Chogyal Wangchuk Namgyal has agreed to transfer the land measuring 61,398.00 sft to the Urban Development Department as per the Circle rate of Gangtok Block vide application Dated 15th March 2021 addressed to the Hon'ble Minister, UDD. The same has been approved by the Government.
20. The Smart City Mission is funded as a 50:50 centrally sponsored scheme and the Government of India has already released Rs.243 crores. Therefore, in terms of the mission guidelines, equal matching share has to be provided by the State Government. Till date only Rs.5 crore State Share has been released, hence to match the GOI release, an amount of Rs.238 crore need to be released for implementing the mission activities.
21. In view of the timely requirement of funds for the project, requirement of land free from encumbrances and high value of the project as well as the need for relaxation of norms for building the structure having 11 floors, proposal is being submitted for consideration by Council of Ministers for the following :- 33
i) approval for demolition of existing Government structures in the Project Area and removal of debris as a separate contract;
ii) approval for mortgage of land by the Concessionaire to fund the project, subject to entering into a separate agreement with the administrative Department for the purpose;
iii) approval for accepting of the Bid of the L1 Bidder M/S Tirupati Plaza Pvt. Ltd. with a VGF of Rs.103.98 crores in terms of Volume- I, II and III of the Bidding documents. The letter of award to the lowest bidder as per the event description was scheduled for 15/02/2021 as per the Request for Proposal;
iv) approval to allow the concessionaire to undertake operation and maintenance including leasing and rental during the operation period.
v) Approval for appointment of Independent Engineer as described herein above and for sharing the salary of such independent engineer equally by the authority and the concessionaire.
vi) Approval for relaxation of the norms of the proposed building having 11 floors subject to confirmation of the geotechnical investigation and report.
vii) Approval for extending the operation period by another 26 years subject to signing of a separate agreement, after finalizing the DPR and all aspects of the building being known to both the concessionaire and the authority and
viii) Approval for provisioning the State Share of Rs.238 crore in the Budget 2021-22 equivalent to the amount already released by the Central Government.
(Sarala Rai, I.A.S.), Secretary to the Government of Sikkim"
52. The proposal was duly considered and approval granted by the Cabinet for 11 floors on 11.06.2021. Cabinet Approval dated 11.06.2021 is as under :-
"Extract of the Cabinet Meeting held on 11th June, 2021, At 10 A.M. in the Cabinet Hall of Tashiling Secretariat, Gangtok, Sikkim xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Urban Development Department 283.5 The proposal seeks of approval to take up various activities for construction of Multi Level Car Parking cum Shopping Plaza at old 34 West Point School under Gangtok Smart City Development Limited, as detailed in the Cabinet Memo. No.215/Secy/UDD/2021 Dated 27.06.2021.
CABINET DECISION : The Cabinet approved the proposals contained in para 21 (i) to 21 (vi) only.
Sd/-
(S.C. GUPTA) IAS Cabinet Secretary ................................................................................................. Cabinet Extract No.CON/CAB/283/2021/6655 Dated : 11.06.2021"
53. The Cabinet Memorandum dated 29.07.2022 for grant of approval for permission to add 3 more floors in addition to eleven (11) floors over partial, horizontal area of the building duly relaxing the Sikkim Building Construction (Amendment). Regulations, 2001 as provided under Regulation 39 of the said Regulation within the approved project cost was placed before the Cabinet for its consideration. The Cabinet Memorandum dated 29.07.2022 at page 2088 of the paper book reads as under :-
"Government of Sikkim Urban Development Department Gangtok, Sikkim xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx No.386/UDD/Secy Daed:29/07/2022 MINISTER-IN-CHARGE : SHRI ARUN KUMAR UPRETI SECRETARY-IN-CHARGE : SHRI M. T. SHERPA, IAS CABINET MEMORANDUM Subject : Multi Level Car Parking cum Shopping Plaza (MLCP) Project at West Point School under Public Private partnership (PPP) under Gangtok Smart City Development Ltd.
1. The construction of Multi Level Car Parking cum Commercial Development at Old West Point School is a project being executed by Gangtok Smart City Development Ltd. under the Public Private Partnership (PPP) mode.
2. The concept drawing submitted by the preferred bidder proposes the construction of fourteen (14) numbers of floors. The bottom four floors are to be for car parking purposes in which Levels 0 and 1 as ordinary parking and Levels 2 and 3 as mechanically operated stack puzzle parking. The parking is proposed for four hundred and fifteen (415) car parking spaces, the rest of the ten floors will be for commercial development with a maximum carpet area of 13,680 sqm with permissible deviation of plus or minus 10%.35
3. Accordingly, the Cabinet in its meeting held on 11/06/2021 had accorded approval for relaxation of norms of the proposed building and had allowed construction of eleven (11) floors duly relaxing the Building Regulation norms.
4. The proposal was also submitted vide sl.no. 18of the cabinet memorandum submitted vide 215/Secy/UDD/2021 Dated 27/05/2021 for construction of fourteen (14) floors subject to certain terms and conditions as elaborated in the said cabinet memo.
5. The geotechnical report submitted by the Department of Mines and Geology, Government of Sikkim states that the bearing capacity of soil is 40T/m2.
6. The site stability report as submitted by the Department of Mines & Geology indicates that the area comprises of medium grade metamorphic rock sequence represented in the area by mica schist with a conclusion that the area falls within Zone one (1) of area stability Zonation Mapping System adopted by the Department of Mines & Geology. Further, the Notification bearing number 17/DMG/20-21 dated : 19.03.2021 specifies that the safe bearing capacity of Zone 1 (Area Zonation made by Mines & Geology Department) is greater than 35T/m2 and since the project site is located in the afore-mentioned Zone 1 region. It may be concluded that the existing soil strata can sustain the expected load of the proposed fourteen (14) floors structure comprising of four (4) floors car parking and ten (10) floors commercial development which shall induce a total load (dead and live load) between 210 to 225 kpa (21 to 22.5 T/m2). Hence, the construction of the building is safe from the geological investigation as conducted by the Department of the Mines & Geology.
7. The concessionaire i.e. M/S Mesaso Infrastructure Private Limited, had further engaged following two agencies for carrying out the detailed geo-technical investigation as a confirmation to the geo-technical investigation carried out earlier by Mines and Geology Department.
a. M/S Geo-informatics Consultancy and Services, Tadong, Gangtok for conducting Standard Penetration Test and to ascertain the soil characteristic and the safe bearing capacity of the soil. Critical locations were identified and soil investigation was carried out at this location to know the safe bearing capacity of soil. As per the soil sample collected from a depth of 12 m to 15m, geologically the 36 area falls under medium and high-grade metamorphic rock sequence represented in the area by garnet ferrous mica schist (with and without quartz veins) Based on core data at various depth the safe bearing capacity of the soil was estimated to 40 ton/m2 which was higher than the safe bearing capacity of soil as per IS Code recommended (35 ton per sqm) in hilly terrain.
b. M/S JP Geo Consultants, Andul Road, Howrah, Kolkata for conducting Plate Load Test for confirming the safe bearing capacity of the soil. The safe bearing capacity of the soil has been estimated and was found to be more than 40T/m2 at 3m depth which is higher than the load of the structure being imposed @ 21ton/m2 on the existing soil. Also, the settlement corresponding to the imposed pressure of 125 kpa, 150 kpa, 175 kpa, 200 kpa, 210 kpa and 225 kpa resulted in a settlement of 33mm, 40mm, 46mm, 53mm, 55mm and 59 mm respecitvly. As a result, it is understood that the overall settlement of the raft foundation under an applied load of 210 in 225 kpa which shall fall on the foundation is well within the acceptable limit of 75 mm as per IS Code 1904.
8. The building will be a composite steel structure built up with steel and concrete for better performance and stability against seismic forces on available land having plain topography. It is designed as being light in weight, more ductile and seismic resistant. The building is designed to resist an earthquake intensity/magnitude of about 8 on Richter scale, the highest ever that is expected to occur in Zone-IV of the Seismic Zonation. The building is designed by SPA Consultant, a leading structural consultant in the country and the same has also been vetted by Indian Institute of Technology, Guwahati. The foundation of the structure is a raft foundation based on geological investigation and on the recommendation of the geo-technical investigation conducted by the Mines & Geology Department, Government of Sikkim, Plate load test/soil test by M/S Jp Geo Consultant & M/S Geo-Informatic Consultancy & Service. Hence, the building has been designed duly keeping in mind the overall safety of the structure as well as the project.
9. Now, the concessionaire vide letter no. MIPL/HO/31/2021-22 dated 10.01.2022 and letter MIPL/HO/33/2021-22 dated 15.02.2022 has requested for allowing additional three (3) floors over and above eleven (11) floors already approved by the 37 Government. For the same, the concessionaire has submitted the drawings and geotechnical investigation reports as mentioned at sl.no.7 above. On review of the drawings as submitted by M/S Mesaso Infrastructure Private Limited, it was revealed that the project has a provision of open-air spaces in each of the floors pertaining to the commercial development space. These open-air spaces were meant for creating green parks, open air plaza etc. to accommodate 3000 people and shall be open to the general public at all times. Further, the concessionaire has proposed to construct a 5 meter wide road on the periphery of the proposed MLCP which shall not only be utilized by the MLCP but also by the public residing in the vicinity of the project site. In order to compensate the reduced commercial area while creating the open air plazas and the peripheral road, the concessionaire has proposed that the structure would rise in a tapered/stepped manner to accommodate the commercial development area of 13,680 sqm with a permissible deviation of plus or minus 10% which has resulted in the number of floors of the proposed structure to increase to fourteen (14) floors.
10. Further, the proposal is also for seeking permission to construct a plaza, from Church Road and a piece of land currently under Sikkim Police utilization for running canteen etc. With respect to permission to construct / create a plaza, the area measuring 357 sqm and 117 sqm an airspace over Church Road and portion of Sikkim Police property respectively falls outside the lease land but it is part and parcel of the project. At present one (1) floor building with GCI Roof of the Sikkim Police exists on the land and this is being used as canteen by the Sikkim Police. The canteen will be incorporated in the structure which will be below the open air plaza and shall be subsequently handed over to the Sikkim Police. As per the proposal this stage is going to be an integral part which will not only be used as an open multipurpose space but would also alternate as an additional space for pedestrians to access the property. The image of the project shows creation of an open front yard without any super structure over it. The State Government may grant permission for the same without altering the status of the land as recommended by the Town Planning Cell of Gangtok Municipal Corporation and the Town Planning Cell of Urban Development Department.
11. The proposal for addition of three (3) more floors on the already approved eleven (11) floors project was placed in the 28th Board Meeting of Gangtok Smart City Development Ltd. held on 38 11.07.2022. The Board discussed the matter and recommended for onward submission to the Government for approval of the Cabinet.
12. The proposal has been approved by the Hon'ble Minister, Urban Development Department for placing the same in the meeting of the Council of Ministers for consideration.
13. The proposal is now placed before the Council of Ministers for consideration of the following :-
a) Approval for granting permission to add three (3) more floors in addition to eleven (11) floors over partial horizontal area of the building duly relaxing the Sikkim Building Construction (Amendment) Regulation 2001 as provided under Regulation 39 of the said Regulation within the approved project cost.
b) Permission to construct an open-air plaza over the Church Road and portion of land under the utilization by Sikkim Police as specified in sl.no. 10 above.
M.T. Sherpa, IAS Secretary Urban Development Department, File No.J(563)/GOS/UDD/MISC/2021"
54. Cabinet approval was granted on 03.08.2022 as would be clear from the note sheet at page 2094 of the paper book which reads as under:-
"Note Sheet The Cabinet in its meeting held on 3rd August, 2022 at Cabinet Hall, Tashiling Secretariat at 09:00 am discussed the following proposal and gave its decision as under:
307.97. The proposal seeks approval for (i) additional 3 floors over partial horizontal area of the building duly relaxing the Sikkim Building Construction (Amendment) Regulation 2001, within the approved project cost, and (ii) construction of an open - air plaza for the project Multi Level Car Parking cum Shopping Plaza (MLCP) Project at West Point School, as detailed in Cabinet Memorandum No.386/UDD/Secy Dated 29.07.2022.
CABINET DECISION: Cabinet approved the proposal.
(Rohini Pradhan) SCS Addl. Secretary Cabinet Section"
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55. From the documents on record and the provisions of Rule 39 of the Sikkim Building Construction (Amendment). Regulations, 2001 read with the Sikkim Allotment of Housing Sites and Construction of Building (Regulation and Control) Act, 1985, the power of the Cabinet to grant relaxation for additional 3 floors to the proposed 11 floors of the Multi-level Car Parking-cum-Commercial Development at Old West Point of School area cannot be said to be illegal.
56. The learned Counsel for the Applicant next submitted that Load Impact Assessment of the site in question has been given a go by, by the Jadavpur University in its Report at page 2063 of the paper book, holding that the Soil Bearing Capacity of the surrounding area is estimated as 46.5 T/Sqm and the load of the proposed structure is ≤50% of the Soil Bearing Capacity and therefore Load Impact Assessment of the surrounding area is not required.
57. The Government of Sikkim, Department of Mines and Geology, Gangtok, Notification dated 19.03.2021, with reference to Zone-1, mentions the Bearing Capacity as ≥35 T/Sqm. (page 129 of the paper book). It is not disputed that the Multi-Level Car Parking is situate in Zone-1 of the Notification dated 19.03.2021.
58. The Respondent No.2 had requested the Department of Mines and Geology, Government of Sikkim vide its letter dated 23.11.2019 (page 1737 of the paper book) to carry out a Geological and Geotechnical Investigation of the project area. In pursuance thereof, the Geological and Geotechnical Investigation Report of the land proposed for construction of structures at Old West Point School Area, Gangtok, East Sikkim of March 2020 was submitted by the Department of Mines and Geology, Government of Sikkim (at page 1738 Colly). The Conclusions and recommendation in the Report at page 1748-1749 of the paper book are extracted hereinbelow :-
40
"Conclusions and recommendations :-
1. Geologically, the area comprises of medium to high grade metamorphic rock sequence represented by Garnetiferrous Mica schist and Mica schist with quartzite intercalations underlain by Lingtse Granitic gneiss. The foliation of rocks strike NW-SE and dip gently towards North east with Westerly facing slope aspect which makes the area geologically favourable for proposed construction of structures at Old West Point School area.
2. Based on the drilling data of Borehold no.01 light brown clayey/silty soil is encountered from 3.00m depth, Garnetiferrous Mica Schist with quartz veins is found from 3.00m to 9.00m depth followed by Moderately weathered Garnetiferrous Mica Schist between 9.00m to 13.00m depth underlain by highly weathered Garnetiferrous Mica Schist between 13.00m to 15.00m depth.
3. For Borehold no.02 micaceous silty soil overburden can be encountered upto depth of 3.00m followed by highly weathered Garnetiferrous Mica Schist between 3.00m to 6.00m depth. Further Garnetiferrous Mica Schist with quartz veins between 6.00m depth to 9.00m depth followed by fresh Garnetiferrous Mica Schist with quartz veins between 9.00m to 10.50m depth.
Moderately weathered Garnetiferrous Mica Schist can be encountered between 10.50m to 13.50 m depth followed by moderately weathered Garnetiferrous Mica Schist and fresh Garnetiferrous Mica Schist.
4. The tensile strength of rock core for Borehold no. 01 of depth 10.50 m is 70.10 T/m2 and 12 m depth is 115.20 T/m2 and compressive strength is 121.00 T/m2 & 96.00 T/m2 whereas tensile strength of rock core for Borehold no.02 of depth 9 m is 331.20 T/m2 and compressive strength is 345.60 T/m2. The low value of strength of the rock is due to high degrees of weathering and nature of flaky micaceous rock. However, strength of the strata greater than 35 T/m2 in hilly terrain is recommended for construction as per IS CODE.
5. As Garnetiferrous Mica Schist is a foliated and becomes non- competent metamorphic rock when contact continuously with water activity in which incidences of differential settlement is a natural phenomenon under such condition. Therefore, suitable foundation design to be designed by a competent structural engineer based on the sub-surface geological condition of rock strata.
41
6. The Safe bearing capacity for Bh. 01 at depth of 1.50 m is 13.84 T/M2 and 3.0m depth is 20.15 T/M2 and SBC for Bh. 02 at depth of 1.50m is 6.92 T/m2, 3.00m depth is 11.51 T/m2 and 4.50m depth is 46.50 T/m2."
59. The Report mentions that Geologically the area comprises of medium to high grade metamorphic rock sequence represented by Garnetiferrous Mica schist and Mica schist with quartzite intercalations underlain by Lingtse Granitic Gneiss. With respect to Borehole no.01 based on drilling data light brown clayey/silty soil was encountered from 3.00m depth, Garnetiferrous Mica Schist with quartz veins was found from 3.00m to 9.00m depth followed by Moderately weathered Garnetiferrous Mica Schist between 9.00m to 13.00m depth underlain by highly weathered Garnetiferrous Mica Schist between 13.00m to 15.00m depth.. Similar tests were carried out for Borehold no.02 also.
The tensile strength of rock core for Borehold No.01 of depth 10.50m is 70.10 T/Sqm. and 12m depth is 115.20 T/Sqm. and compressive strength is 121.00 T/Sqm. & 96.00 T/Sqm. whereas tensile strength of rock core for Borehold No.02 of depth 9m is 331.20 T/Sqm. and compressive strength is 345.60 T/Sqm. The Report further mentions that the low value of strength of the rock is due to high degree of weathering and nature of flaky micaceous rock. However, a strength of the strata, greater than 35 T/sqm. in hilly terrain, is recommended for construction as per IS CODE. The Report also mentions that the Safe Bearing Capacity for Borehole 01 at depth of 1.50 m is 13.84 T/Sqm. and 3.0m depth is 20.15 T/Sqm. and SBC for Borehole 02 at depth of 1.50 m is 6.92 T/sqm., 3.00 m depth is 11.51 T/Sqm. and 4.50 m depth is 46.50 T/Sqm.
60. From the Geological and Geo-Technical Investigation Report we find that the Load Bearing Capacity of the ground at the site in question 42 is 46.50 T/Sqm. at a depth of 4.50m. We have already noted hereinabove that the foundational depth of the structure is 4.5 mtrs. The Department of Mines and Geology, Gangtok, Notification dated 19.03.2021, for Stability Zone-1 prescribes the Load Bearing Capacity of higher than 35 T/sqm.
61. A further Report was submitted by M/s Geo Informatic Consultancy & Services Tandong, Gangtok on the detailed Geological, Geo- Technical & Geo-Physical investigation of the land proposed for construction of the Multi-Level Car Parking Cum Plaza at page 1846 of paper book (Colly). The conclusions and suggestions in the Report at page 1881 read as under :-
"4. The recovered core size few having more than 5cm length hence testing of strength in point load and Brazillian in was done only for five core samples. The highest point load strength is 691.20 T/m2 however least strength is 192 T/m2.
5. The SPT conducted during weathered strata has been noted and safe bearing pressure is estimated using 25mm settlement and 1.5m bottom of footings. The calculation gives the strata having more than 30T/M2 at 3.0m depth however at greater depth the strength is continuously increasing."
62. Perusal of the Report would show that SPT conducted during weathered strata has been noted and Safe Bearing Pressure is estimated using 25mm settlement and 1.5m bottom of footings. The calculation gives the strata having more than 30T/M2 at 3.0m depth. However, at greater depth the strength is continuously increasing.
63. It is noteworthy that six Boreholes were drilled upto 15 mtrs. depth and soil samples were collected which were then tested in NABL approved laboratory and Safety Bearing Capacity (SBC) of the soil was estimated and found to be more than 45 T/Sqm. at 4.5 mtrs. which is much higher than the Safety Bearing Capacity as per IS- 43 CODE recommendation of 35 T/Sqm. as per Soil Test Report dated March 2021.
64. A further Report was submitted by the J. P. Geo Consultants and ISO 9001:2015 certified organization regarding Geo Technical Investigation for the proposed Multistoried Building in question (page 1176 Colly) in September 2021. The investigation for work was commenced on 22.09.2021 and completed on 28.09.2021.
65. The Repot has also been duly vetted by the Department of Construction Engineering, Jadavpur University. During investigation, 4 Plate Load Tests were carried out at specified locations and depth in accordance with IS-1888 ; 54.3 T/Sqm. Load was applied and next settlement was between 3.29 to 3.89 mm and Safety Bearing Capacity was found to be 36.21 T/Sqm. under imposed loading 4.00mm to 4.40 mm Settlement of Plate.
66. The Respondent No.12 vide its letter dated 01.10.2021 (page 1187 of the paper book) submitted the Architectural Plan for implementation of Multi-Level Car Parking cum Commercial Development at Old West point School, near M.G. Marg, Gangtok, East Sikkim to the Respondent No.2, Gangtok Smart City Development Limited. The Structural vetting of design and drawing of the proposed 4 level parking + 10 level Commercial Development (CD) of the project in question was duly vetted by the Department of Civil Engineering, IIT, Guwahati vide their letter dated 04.10.2021 (page 1188 of the paper book).
67. Further Geotechnical Investigation was started on 07.11.2021 and completed on 10.12.2021. The Geotechnical Investigation Report carried out by J. P; Geo Consultants is at page 1199 of the paper book and has been duly vetted by the Department of Construction 44 Engineering, Jadavpur University. This Report in Section (III) gives the foundation depth below FGL at 4.50 mtrs.
68. A Further Structural Design Report has been submitted by the SPA Consultants, Kolkata with regard to the proposed Mixed Use Development Building 4 Level Parking + 10 Level Commercial Development at Old West point School, Gangtok, East Sikkim at page 1216 of the paper book (Colly).
69. Para 2.14 of this Structural Design Report under the heading "Design Criteria for Foundation" (page 1220 of the paper book) reads as under :-
"2.14 DESIGN CRITERIA FOR FOUNDATION
i) Raft Foundations has been considered based upon the Geo Technical investigation report prepared by M/s Geo Informatic Consultancy & Services, Tandong, Gangtok and further the Plate Load Test and soil test done by J.P. Geo Consultants of Kolkata, all the samples have been tested in NABL approved laboratory, which has been further vetted by Jadavpur University, Kolkata. Jadavpur University is a premier institute of India. This will dissipate all the vertical and horizontal loads safely to the soil/rock below. The type of foundations proposed is raft foundation as the available bearing capacity is more around 35t/sqm.
ii) About 4.5 meter of over burden soil was removed to reach the foundation level of bottom of raft therefore a relief of pressure on the foundation rock was actually 21 Ton/sqm
- 4.5 X 2.0 Ton/sqm = 12 Ton/sqm, Whereas bearing capacity of rock is much higher as indicated by SPT and plate Load test conducted at various level during soil testing.
iii) As per IS Code 1892-1979 Claus 2.3.1 the boring of the soil requires 7-8 Nos of boreholes but in this project we have done as a measure of taking abundant precaution for the safety of structure number of bore holes spread all over the site at close intervals. It is by far very dense probing of sub surface condition usually done in any project be it building, dams, steel plant etc. It only conforms that the Structural 45 Engineer took extreme caution in designing a safe foundation for a proposed structure."
70. This Report dated 26.01.2022 states that relief of pressure on the foundation rock was 21 Ton/Sqm. - 4.5 X 2.0 Ton/Sqm. = 12 Ton/Sqm. whereas the Bearing Capacity of rock is much higher as indicated by SPT and Plate Load Test conducted at various level during soil testing.
71. Thus, from the various Reports on record, submitted by the Experts, none of which have been assailed by the Applicant on its technical aspects read with the Department of Mines and Geology Notification dated 19.03.2021 would show that the design load of the construction in question on the foundation of the site in question is 21 T/Sqm. whereas the Load Bearing Capacity of the site in Zone-1 is ≥35 T/Sqm. It is considering this Report that the Department of Construction Engineering, Jadavpur University vide its document at page 1231 of the paper book, has certified that the proposed Multi- Level Car Parking cum Commercial Development at Old West Point School, near M.G. Marg, Gangtok, East Sikkim is designed as per the relevant IS Code 1893-2016, IS-13920-2016, IS-800-2007, IS-875, IS-456-2000 and since the Soil Bearing Capacity of the site in question is estimated as 46.5 Ton/Sqm. and the load of the proposed structure is ≤50% of the Soil Bearing Capacity therefore, the Load Impact Assessment of the surrounding area is not required. The Report of the Department of Construction Engineering, Jadavpur University at page 1231 of the paper book reads as under :-
"TO WHOM IT MAY CONCERN This is to certify that the Proposed Multi Level Car Parking cum Commercial Development at Old West Point School, Near M.G.Marg, Gangtok, East Sikkim is designed as per the relevant IS Code 1893 2016, IS-13920-2016, IS-800-2007, IS- 875, IS-456-2000 and designed load on foundation is 21 46 Ton/Sqm. As Mica Schist rock has been encountered below the foundation level, then there shall be no load impact in the surrounding area of the project site. The Soil Bearing Capacity is estimated as 46.5 Ton/Sqm. (As per IS Code: 6403-1981) and load of the proposed structure is less than 50% of the Soil Bearing Capacity that's why the Load Impact Assessment of the surrounding area is not required".
72. Mr. Pratap Shanker, learned Counsel for the Applicant then submitted that the Arithang and Indira Bypass is just below the proposed construction site and any mishappening can happen due to construction of the building in question due to poor quality of the soil in the area.
73. We have already analyzed the various Reports on record which on technical grounds submitted by the Experts have stated that the foundational load of the structure is 21 Ton/Sqm. whereas the Load Bearing Capacity of the site is ≥46.50 Ton/Sqm. and therefore the question of any harm being caused due to any mishappening or the soil of the area being alleged of poor quality, is nothing but a figment of imagination of the Applicant.
74. The stand of the State Respondent in their counter affidavit is that the 2018 Report titled "Multi-Hazard Risks and Vulnerability Assessment of Gangtok Municipal Corporation, East Sikkim"
published by the Sikkim Disaster Management Authority, Land Revenue & Disaster Management Department, Government of Sikkim, states that the site is comparatively less susceptible to earthquake hazards in the entire Arithang Ward. It is stated that the site of Arithang is characterized by gentle slope gradiant with sandy soil up to 3m depth, followed by parent soil/weathered rock having soil bearing capacity of 45.50 T/M2 as per IS Code 6403-1981 which has comparatively high soil-bearing capacity. It is also stated that the down slope of Arithang is characterized by medium to high-grade 47 metamorphic rock sequence represented in the area by lingtse granitic gneiss inter band with mica schist ; the lingtse granitic gneiss is comparatively the most competent and bears high compressive rock strength within the State of Sikkim.
75. The Sikkim State Disaster Management Authority has filed its affidavit stating that the entire area of Sikkim lies in Zone IV of the Seismic Zonation Map of India. A compilation of earthquake in Sikkim has been filed along with this affidavit and it is stated that the highest frequency and magnitude of earthquake recorded in the State of Sikkim was 6.9 which was more than a decade ago in the Sikkim-Nepal Border Region.
76. The SEIAA, Sikkim has also filed its affidavit stating that various Geo-Technical and Geological Reports on record as well as the Reports of the Jadavpur University has been considered by SEIAA, Sikkim while granting the Environmental Clearance. It is also stated that the Environmental Clearance was granted by SEIAA, Sikkim on 25.02.2022 and another Environmental Clearance was granted by Ministry of Environment, Forests and Climate Change (MoEF&CC) on 23.08.2023 for vertical expansion by 3 floors, of the Multi-Level Car Parking cum Commercial Development at Old West Point School area.
77. We also find that the Cabinet, before granting its approval to the 11 storeys and subsequently to the 3 additional floors taking the total height of the Multi Level Car Parking in question to 14 storeys, has duly considered the various Geological and Geo-Technical Reports as would be clear from the Cabinet Proposal itself. The first Cabinet proposal was dated 27.05.2021 and the proposal was for building structures having 11 floors and Cabinet approval to the same was 48 granted in the meeting of the Cabinet held on 11.06.2021 (page 635/1909 of the paper book) and Cabinet approval was granted.
78. The second Cabinet Proposal and the approval for additional 3 floors has already been extracted hereinabove. The cabinet proposal itself shows that all the Technical Reports have been mentioned for consideration of the Cabinet.
79. The Applicant has filed a composite rejoinder affidavit dated 11.11.2024 reiterating the stand taken by him in his Original Application. In addition, it has been alleged that the project site is within 10 km of the Eco Sensitive Zone (ESZ) and therefore, in terms of the EIA Notification 2006, if the site is located within 10 km from the boundary of Eco Sensitive Zone (ESZ) then the project specified in Category B will be treated as Category A and therefore Environmental Clearance should not be issued.
80. It is also alleged that the Respondent No.12 has misled with regard to the distance between the project in question and the Fambong Lho Wildlife Sanctuary and the project in question is 2.3 km only from the site.
81. As we have already noted that the Applicant has not challenged the Environmental Clearance and therefore the allegations that Environmental Clearance could not have been granted as the site is within 10 km from the boundary of Eco Sensitive Zone in Category B and the project will have to be treated in Category A cannot be questioned in the present proceedings. Even otherwise the Hon'ble Supreme Court has held that Eco Sensitive Zone has been notified and construction would not be permissible within 1 km of the same thereby modifying its earlier order in T. N. Godavarman Thirumulpad
- versus - Union of India in W.P.(Civil) No.202 of 1995 the bar of construction in 10 km in the Eco Sensitive Zone would not apply. 49
82. The stand of the Respondent No.12 in their sur-rejoinder with regard to the allegation that the Project in question falls within the Eco Sensitive Zone of the Fambonglho Wildlife Sanctuary is that the Eco Sensitive Zone Notification dated 27.08.2014 (page 2348 to 2356 of the paper book) mentions clearly that the extent of the Eco Sensitive Zone shall be 25 Mtrs. all around the boundary of the Fambonglho Wildlife Sanctuary. The stand of the Respondent No.12 is that this Notification is a final Notification and not a draft Notification which has been issued only after the draft Notification had been published vide Government of India Notification dated 04.02.2014 inviting objections and suggestions from all persons likely to be affected thereby. The Notification dated 27.08.2014 mentions that copies of the Gazette Notification were made available to the public on 04.02.2014 and suggestions received in respect of the proposed draft Notification have been considered by the Central Government and it is only thereafter that the final Notification of the Eco Sensitive Zone laying down the boundaries of the Fambonglho Wildlife Sanctuary has been notified.
83. The categorical stand of the Respondent No.12 which has not disputed by the Applicant, is that the Project of the Respondent No.12 is at a distance of 2.5 Kms. as per the averments of the Original Application itself, and is therefore clearly outside the Eco Sensitive Zone Notification of the Fambonglho Wildlife Sanctuary. It is further stated that the said Eco Sensitive Zone Notification was challenged in Original Application No.15/2015/EZ titled Tseten Lepcha Vs. Union of India & ors. and the Original Application was dismissed by the Tribunal by its order dated 21.08.2017.
84. We have considered the submission of the learned Counsel for the parties on this issue and we find that the Applicant has completely 50 mis-interpreted and misunderstood the EIA Notification 2006. The EIA Notification 2006 had amended the General Conditions on 25.06.2014 and had required appraisal of the Category 'B' projects as Category 'A' projects if they were situated within 5 km of Eco Sensitive Zone among other areas. The requirement of 10 kms. was only with respect to certain projects such as River Valley Projects, Special Economic Zones among others.
85. The amended MoEF&CC Notification dated 25.06.2014 is part of the record (page 2421 of the paper book). The said Notification reads as under :-
"II. After the Schedule, in the Note relating to General Condition (GC), the following General Condition shall be substituted, namely :-
General Condition (GC) :
Any project or activity specified in category 'B' will be appraised at the Central level as Category 'A', if located in whole or in part within 5 km. from the boundary of : (i) protected areas notified under the Wildlife (Protection) Act, 1972 (53 of 1972) ; (ii) Critically polluted areas as identified by the Central Pollution Control Board constituted under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) from time to time ; (iii) Eco-sensitive areas as notified under sub-section (2) of section 3 of the Environment (Protection) Act, 1986 ; and (iv) inter-State boundaries and international boundaries ; provided that for River Valley Projects specified in item 1(c), Thermal Power Plants specified in item 1(d), Industrial estates/parks/complexes/areas, export processing zones (EPZs), Special Economic Zones (SEZs), biotech parks, leather complexes specified in item 7(c) and common hazardous waste treatment, storage and disposal facilities (TSDFs) specified in item 7(d), the appraisal shall be made at Central level even if located within 10km.
Provided further that the requirement regarding distance of 5 km or 10 km, as the case may be, of the inter-State 51 boundaries can be reduced or completely done away with by an agreement between the respective States or the Union Territories sharing the common boundary in case the activity does not fall within 5km or 10 km, as the case may be of the areas mentioned at item (i), (ii) and (iii) above."
86. We may also note that even in cases of the condition of 5 kms from Eco Sensitive Zone, Note 3 of the EIA Notification 2006 in item 8(a) - Building and Construction Projects, clarifies that General Conditions are not applicable in case of building and construction projects under Item 8 of the Schedule to the EIA Notification, 2006 and therefore, the appraisal of the Project in question as the Category 'A' project is incomprehensible.
87. The Sikkim Pollution Control Board in their affidavits have categorically stated that NOC dated 17.09.2021 was granted to the Urban Development Department (UDD), Government of Sikkim for demolition/dismantling of an old facility comprising a three storeyed parking facility and its ancillary construction located at Old West Point School, Gangtok. The Consent to Establish (CTE) was granted for eleven floors on 24.02.2022 (page 688 to 689 of the paper book) under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 for construction of Multilevel Car Parking-cum- Shopping Hub at Old West Point School area. Further, provisional Consent to Establish (CTE) dated 17.10.2023 under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 was granted for fourteen (4G+7+3) storeyed Integrated Commercial cum Multi Level Car Parking Complex. It is stated that this provisional Consent dated 17.10.2023 has been made subject to fulfilment of 25 conditions, including a technical examination from the Central Building 52 Research Institute, Roorkee. The Consent to Establish (CTE) dated 18.01.2024 (page 695 to 696 of the paper book) was granted for vertical expansion of the fourteen storeyed (4G+7+3) Integrated Commercial cum Multi Level Car Parking Complex at M.G. Marg, Gangtok. It is also stated that multiple inspections of the Multi Level Car Parking cum Commercial Development Project have been conducted by the Sikkim Pollution Control Board on 24.05.2022, 01.09.2022, 13.12.2022, 22.02.2023 and 31.05.2023 and no adverse observation has been made and no non-compliance of the Consent Conditions has been observed during the said inspections.
88. The Applicant in his rejoinder has also questioned the experience and qualification of Dr. Dipesh Majumdar, Assistant Professor, Department of Construction Engineering, Jadavpur University and the expertise of the Associate Professor, IIT, Guwahati. In our opinion, the educational qualification of Dr. Dipesh Majumdar, Assistant Professor or of the Associate Professor, IIT, Guwahati cannot be examined in the present proceedings and in any case this Tribunal has no jurisdiction to examine the educational qualification of an Expert in the present proceedings as such the questions are beyond the jurisdiction of the Tribunal as the jurisdiction of the Tribunal is confined to issues laid down in the Section 14 of the National Green Tribunal Act, 2010.
89. Learned Senior Counsel Mr. Pinaki Mishra for Respondent No.2, Gangtok Smart City Development Limited submitted that Gangtok Smart City Development Limited has always been concerned regarding the technical feasibility and stability of the structure and therefore it requested the Department of Mines and Geology, Government of Sikkim for detailed geological and geo-technical investigation. The Department of Mines and Geology, Government of 53 Sikkim prepared a detailed Report, namely, "Geological & Geo- Technical Investigation Report" of the land proposed for construction of various structures at the Old West Point School, Gangtok, East Sikkim (page no.869 to 873 of the paper book) and recommended the construction as per IS Code. Gangtok Smart City Development Limited further instituted a comprehensive study to finalise the Technical Feasibility Report. The study was conducted by an internationally reputed firm Grant Thornton. Considering the report of the Geology & Mines Department, it further prescribed that all structural members of the proposed building shall be in compliance with IS Code 1893 "Criteria for Earthquake Resistant Design of Structure latest revision" and IS Code 13920:1993 Ductile Detailing of Reinforced Concrete Structure Subjected to Seismic Force. It prescribed for Reinforced Cement Concrete (RCC) Retaining Wall all around the basement with additional seepage pressure calculation as IS 14458 "Retaining Wall for Hill Area Guidelines" to avoid landslide and accident and it also suggested to follow IS 14680-2004 LANDSLIDE CONTROL - GUIDELINES for the earth slope stability calculation and IS Code 14804 : 2000 for Siting Design and Selection of Material for Residential Building in Hilly Area - Guideline.
90. Mr. Pinaki Mishra submitted that construction has been done within the aforesaid technical discipline.
91. He further submitted that Gangtok Smart City Development Limited participated in an event named 'Go Gangtok' organized during 4th December to 12th December 2021 at Statue of Liberty Hall, M. G. Marg, Gangtok and made public display of the projects through sheets, photographs, 3D models and Graphical representations, large scale public awareness for the Project in question. Further, Gangtok Smart City Development Limited have enclosed 54 photographs of tall building existing on the M.G. Marg. The Multilayer Car Parking building is behind the M. G. Marg and hence cannot obstruct the visibility of Kanchenjunga.
92. The Applicant could not submit any concrete argument or technical proof to dispute these submissions.
93. On technical ground the Applicant has not been able to show that the Multi Level Car Parking cum Commercial Development is being constructed is in violation of any law, however one cannot ignore the perceptual apprehension of a very tall building of 14 storeys being constructed in a fragile ecosystem where geological surprises cannot be ruled out in advance. However, the State Respondents as well as the Respondent No.12 submitted that several tall buildings are already existing in Sikkim/Gangtok namely (1) The Central Referral Hospital (Manipal) at Tadong, Gangtok @ 9 storeys ; (2) Sir. Thuthob Namgyal Memorial Hospital, Socheygang, Gangtok @ 13 storeys ; and (3) State Secretariat Building, Tashiling, Gangtok @ 8 storeys among others.
94. The Applicant has relied upon the judgment reported in 2022 SCC Online NGT 154 Praveen Kakar and Others -versus- Ministry of Environment, Forest and Climate Change through Secretary and others wherein the allegations was that the Respondent No.11 therein had illegally encroached upon and sold a substantial part of land comprising about 45% of the construction project which was reserved for parks, roads etc. in Sushant Lok, Phase I, Gurgaon in violation of environmental laws.
We have gone through the said judgment and are of the view that the same has no application to the facts of the present case.
95. The Applicant has next relied upon the judgment reported in (2013) 6 SCC 620 G. Sundarrajan -versus- Union of India and Others 55 wherein the issues were with regard to the setting up of nuclear power plant at Kudankulam in Tamil Nadu and the potential adverse effects of ionizing radiation. The contention of the Appellants therein, as noted in para 125 of the judgment, was that with regard to the project in question the regulatory authorities had consistently legalized the fait accompli violations presented by the project proponent and that plant standards had been relaxed; statutory violations such as construction without permission, unauthorised setting up and commissioning of discharge outlets had not only merely been condoned but justified by the TNPCB, MoEF, etc. We have gone through the said judgment and in our considered opinion the same has no application to the facts of the present case.
96. The Applicant has also relied upon the judgment reported in (2021) 4SCC 309 Himachal Pradesh Bus-Stand Management and Development Authority (H.P. BSM&DA) -versus- Central Empowered Committee and Others the genesis of which was an order dated 12.11.1997 passed by Ministry of Environment, Forests and Climate Change (MoEF&CC) on a proposal made by the State of Himachal Pradesh permitting diversion of 0.093 ha of forest land for the construction of a parking space at McLeod Ganj, in accordance with Section 2 of the Forest Conservation Act, 1980.
One of the issues involved therein was that the approval accorded by the MoEF&CC on 12.11.1997 was only for construction of a "parking place" at McLeod Ganj and further on 01.03.2001 approval was accorded only for construction of a "bus-stand" at McLeod Ganj and therefore, the State of Himachal Pradesh had no power to authorize the construction of "hotel-cum-restaurant" structure and therefore, the construction was illegal. The CEC had reported serious violations of law and recommended that the whole complex should be pulled 56 down and only parking place must be constructed as was originally visualized for which forest clearance has been granted under the 1980 Act. The Hon'ble Supreme Court while disposing of the appeal directed demolition of the hotel-cum-restaurant structures in the bus-stand complex.
We find that the said judgment has no application to the facts of the present case.
97. Reliance has also been placed by the Applicant on the judgment reported in (2020) 9 SCC 781 State of Madhya Pradesh -versus- Centre for Environment Protection Research and Development and Others. The issues in the said Appeal as noted in para 8 and its Sub para by the Hon'ble Supreme Court was whether the National Green Tribunal could have directed the State Government to issue orders and/or instructions to petrol pumps or retail outlets or dealers not to supply fuel to vehicles not having valid Pollution under Control (PUC) and whether vehicles not complying with the requirement of displaying a valid PUC certificate could be debarred provided with fuel by dealer or petrol pump or outlet.
The aforesaid judgment has also no application to the facts of the present case.
98. The next case relied upon by the Applicant is (2022) 13 SCC 401 Municipal Corporation of Greater Mumbai -versus- Ankita Sinha and Ors. which was a matter relating to the National Green Tribunal taking suo motu cognizance of an article published on 07.08.2018 in news portal "The Quint" alleging dumping site at Deonar. This judgment has also no application to the facts of the present case.
99. Reliance has next been placed upon by the Applicant in the judgment of the Hon'ble Supreme Court reported in (2019) 18 SCC 494 Mantri 57 Techzone Pvt. Ltd. -Versus- Forward Foundation & Ors. which was a case of an alleged ecologically sensitive land being allotted by the Karnataka Industrial Area Development Board to the Respondent No.9 and 10 therein for setting up of software technology park, commercial and residential complex, hotel and multi-level car parks. The allegation was with regard to large scale construction activities in the catchment area of the Bellandur lake and change of land which in turn directly affected the catchment of the Bellandur Lake and therefore, on the facts of the case, the Hon'ble Supreme Court directed that the construction in question be demolished. In our opinion, the said judgment has no application to the facts of the present case.
100. Reliance has next been placed by the Applicant upon the judgment of the Hon'ble Supreme Court reported in (1997) 1 SCC 388 M. C. Mehta -Versus- Kamal Nath and Others. This was a case where a Motel had been made on the bank of the River Beas by encroaching land including substantial forest land ; earth movers and bulldozers were used to turn the course of the river to create a new channel by diverting the flow of the river.
The said judgment also has no application to the facts of the present case.
101. Reliance has next been placed on the judgment of the Hon'ble Supreme Court reported in (2022) 11 SCC 1 Rajeev Suri -Versus- Delhi Development Authority and Others. This was a case relating to a challenge to the permissibility of Central Vista Project of the Government of India wherein the allegations inter alia were with regard to structural defects along with acute shortage of office spaces. It is alleged that the officers are ill-equipped to meeting basic fire and earthquake safety norms requiring regular upgradation etc. 58 The contentions of the petitioner as crystalised in para 32 and its Sub-paras and the observation of the Hon'ble Supreme Court on this subject would be relevant which read as under :-
"732. The petitioners, on the other hand, have submitted:
732.1. Existing Parliament House and Central Vista are a continuing and Living heritage which must be preserved and protected for future generations. Redevelopment of nearly 80 acres of land, demolition of National Museum and construction of new Parliament will permanently affect the iconic character, skyline, layout, and the architectural harmony of the Central Vista. It would cause irreplaceable and non-revocable harm and damage Grade I heritage buildings and precincts.
b 732.2. Re-development if permitted would violate Articles 49 and 51(c) of the Directive Principles of State Policy. Further, the doctrine of public trust applies to historically significant buildings/precincts and properties of special consequence (Lok Prahari v. State of U.P.) 732.3. Re-development, if required, should be undertaken as per well-established norms applicable to places of historical interest. c Reference is made to Vienna Memorandum on World Heritage and Contemporary Architecture - Managing the Historic Urban Landscape (2005), ICOMOS's Delhi Declaration on Heritage and Democracy (2017) and others. The exercise being undertaken fails to follow best practices of heritage conservation. 732.4. No expert or specialized study and assessments has been undertaken and in absence, allegations of structural integrity, d fire safety and seismic concerns, etc. are mere reservations and misgivings. There is no empirical data in support of the assertions made by the respondents that Parliament House, etc. has outlived its life. No such doubt is raised in respect of other buildings constructed at the same time like the North and South Blocks and the president's House. On the contrary, Annexure 'F' to the written submissions filed by the respondent records the state of e preservation of parliament House as "fair". Heritage assessment study should be undertaken and made public. Existing Parliament building can be upgraded.
732.5. In the alternative, expansion or additional construction rather than construction of a new Parliament can be explored. Office spaces can be created near the official residence of the bureaucracy.
59 732.6. Cost-benefit analysis has not been undertaken though f significant capital expenditure in excess of Rs.20,000 crores apparently would be incurred. The capital cost would be higher as logistics, temporary housing cost and the cost of removal or transplantation of mature trees, etc. have not been included. Assertion that expenditure of Rs.1000 crores per annum on account of rent, etc. is unsupported by any document and is assumptive. 732.7. Over a period of time, there has been reduction of green g area in the Central Vista, which is open and accessible to general public. The public area would get further reduced with the redevelopment plan.
732.8. Zone 'C' where New India Gardens are proposed, is at a different location and not within Zone 'D', in which the Central Vista and LBZ are located. Reduction in green/recreational area in Central Vista, a prime and iconic place, cannot be compensated by a garden at a different location.
h 732.9. By the Constitution (84th Amendment) Act, 2002 has extended the freeze on undertaking fresh delimitation as a part of national population strategy. Delimitation for the same reason may or may not take place. In any case it would be after the next census post 2026, that is, in 2031.
733. We have referred to the contentions of the petitioners and the respondents in some detail but would not comment on merits. These are complex and esoteric issues which have to be at first stage considered and decided by the specialized authorities like the Heritage Conservation Committee. If we consider and examine the merits of the pleas, we would be directly encroaching their jurisdiction and exceeding the power of judicial review. It is the reasoning and discussion in the orders by the statutory/quasi- judicial that are subjected to judicial scrutiny and review. Further, matters pertaining to heritage, architectural, functionality, etc. are for the experts and specialists in the field like architects, town planners, historians, urbanists, engineers, etc. to examine and guide. Suffice it would be to observe that the stands on merits reflect different perceptions and beliefs. The respondents without doubt do verily believe that redevelopment of Central Vista and New Parliament Building is an imperative necessity. Central Vista requires a makeover. The hutments and some of the non-heritage buildings like Shastri Bhawan, Nirman Bhawan, udyog Bhawan, etc. which it is stated occupy more than 90 acres of land require re- development. Similarly, if New Parliament Building is required and being a must, it should be constructed. Several former and the 60 present Speaker have expressed the need for construction of a new Parliament. Some of the petitioners do not oppose partial and regulated redevelopment for functionality, while maintaining and preserving the heritage, ethos and visual look. Central Vista and Parliament House is a heritage and belongs to the Nation and the people. Their primary grievance is lack of information and details. They submit that experts and specialists can provide acceptable solutions to conserve and make historical buildings functional, as it has happened elsewhere. The issues raised by the petitioners along with the stand of the respondents have to be taken into consideration by the statutory authorities in terms of and as per the statutory mandate. Ultimately, the issue has to be decided as per law after ascertaining details by professional experts. Our interference does not reflect on merits of the stands, but is on account of procedural illegalities and failure to abide by the statutory provisions and mandate.
734. In view of the aforesaid discussion, while setting aside and quashing the final notification of modification/change of the land use dated 28-3-2020 in respect of the 6 plots in the Central Vista, we would direct as under:
734.1. The Central Government/Authority would put on public domain on the web, intelligible and adequate information along with drawings, layout plans, with explanatory memorandum, etc. within a period of 7 days.
734.2. Public advertisement on the website of the Authority and the Central Government along with appropriate publication in the print media would be made within 7 days.
734.3. Anyone desirous of filing suggestions/objections may do so within 4 weeks from the date of publication.
a Objections/suggestions can be sent by email or to the postal address which would be indicated/mentioned in the public notice.
734.4. the public notice would also notify the date, time and place when public hearing, which would be given by the Heritage Conservation Committee to the persons desirous of appearing before the said Committee. No adjournment or request for postponement would be entertained. However, the Heritage b Conservation Committee may if required fix additional date for hearing.
734.5. Objections/suggestions received by the Authority along with the records of BoEH and other records would be sent to the Heritage Conservation Committee. These objections, etc. would also 61 be taken into consideration while deciding the question of approval/permission.
c 734.6. Heritage Conservation Committee would decide all contentions in accordance with the Unified Building Bye-laws and the Master Plan of Delhi.
734.7. Heritage Conservation Committee would be at liberty to also undertake the public participation exercise if it feels appropriate and necessary in terms of para 1.3 or other paragraphs of the Unified Building Bye-laws for consultation, hearing, etc. It d would also examine the dispute regarding the boundaries of the Central Vista Precincts at Rajpath.
734.8. The report of the Heritage Conservation Committee would be then along with the records sent to the Central Government, which would then pass an order in accordance with law and in terms of Section 11-A of the Development Act and the applicable e Development Rules, read with the Unified Building Bye-laws.
734.9. The Heritage Conservation Committee would also simultaneously examine the issue of grant of prior permission/approval in respect of building/permit of new Parliament on Plot No. 118. However, its final decision or outcome will be communicated to the local body viz. NDMC, after and only if, the modifications in the Master Plan were notified. f 734.10. The Heritage Conservation Committee would pass a speaking order setting out reasons for the conclusions.
735. We set aside the order of the EAC dated 22-4-2020 and the environment clearance by the Ministry of Environment and Forests dated 17-6-2020, and would pass an order of remit to the EAC with a request that they may decide the question on environment g clearance within a period of 30 days from the date copy of this order is received, without awaiting the decision on the question of change/modification of land use. Speaking and reasoned order would be passed.
736. The parties, if aggrieved by any order/approval/non- approval would be entitled to challenge the same in accordance with law. In the facts of the case there would be no order as to h costs".
102. In the present case, we may note that all documents relating to structural consideration gone into by Experts in the matter of construction of Multi Level Car Parking cum Commercial Development are in the public domain and as we have already 62 observed hereinabove, the Applicant has not been able to dispute the findings of the Experts and in any case, the Hon'ble Supreme Court in the judgment of Rajeev Suri -Versus- Delhi Development Authority and Others (Supra) has held that the matters pertaining to heritage, architectural, functionality, etc. are for experts and specialists in the field like architects, town planners, historians, urbanists, engineers, etc. to examine and guide. The Experts have been duly considered by the Cabinet before granting approval. The Reports have been considered by the SEIAA, Sikkim as well as by the MoEF&CC before granting their respective Environmental Clearances. The judgment in Rajiv Suri (Supra) therefore in our opinion has no application to the present case.
103. The next judgment relied upon by the Applicant reported in 2024 SCC Online SC 3767 Rajendra Kumar Barjatya & Anr. -Versus- U.P. Avas Evam Vikas Parishad & Ors. That was the case where a Writ Petition had been filed in the High Court to stop illegal/unauthrised construction on residential plot and to provide police force to execute the order of demolition passed by the U.P. Avas Evam Vikas Parishad.
104. The Hon'ble Supreme Court held that the Respondent No.5 therein, was allotted the subject property on 30.08.1986 and possession was handed over to him on 15.06.1989 ; the Respondent No.1 had executed a Sale Deed cum Freehold Deed in favour of the Respondent No.5 in respect of the subject property on 06.10.2004. The allegation of the Respondent No.1 therein, was that the said Deed was executed by the Respondent No.1 based on fabricated construction Completion Certificate produced by the Respondent No.5 and he along with assistance of the Respondent No.6 after taking possession, started to construct commercial shop without obtaining 63 sanctioned map/plan/approval from the competent authority. The Hon'ble Court recorded a finding that there was no material available to prove that the Respondent No.5 was in possession of the Sanctioned Plan in respect of the construction made on the subject property or that he submitted any application before the authority concerned seeking sanction/approval for such construction and the same was pending. The Hon'ble Supreme Court therefore upheld the order of the Hon'ble High Court and directed the Appellants to vacate and handover vacant premises to the Respondent authorities with a further direction to the authorities to take steps to demolish the unauthorized construction of the property in question within two weeks.
105. We have considered the judgment of the Hon'ble Supreme Court and we find that the said judgment has absolutely no application to the facts of the present case as in the present case, the Respondent No.12 was in complete possession of the Geological and Geo- Technical Survey Reports as well as the various reports of Jadavpur University and IIT, Guwahati as well as Environmental Clearance for construction of 11 storeys issued by the SEIAA, Sikkim and further Environmental Clearance granted by the Ministry of Environment, Forests and Climate Change (MoEF&CC) for additional 3 floors taking the total number of floors to 14 storeys.
106. The Applicant has next relied upon the judgment reported in 2017 SCC Online NGT 981 Society for Protection of Environment & Biodiversity Through the Convener -versus- Union of India through Secretary, Govt. of India Ministry of Environment, Forest and Climate Change. The grievance of the Applicant therein was with regard to the alleged pathetic condition of urban local bodies in the area under their jurisdiction more particularly in Ghaziabad and it was alleged 64 that the exemption granted from Environmental Clearance for building and construction projects would be a huge retrograde step in the area of environment conservation.
This judgment, in our opinion, has also no application to the facts of the present case.
107. Next reliance has been placed by the Applicant upon the judgment passed in Original Application No.635 of 2017 decided on 18.12.2017 Ramesh Chand -Versus- State of Himachal Pradesh and Ors. This was a case initially related to the construction of Hotel Manali Valley where four storeyed constructions were in existence and sanction was sought for raising 2+1 storeys on the existing structure of two storeys adjacent to the four storeys that were already in existence. The facts of the case as noted in para 29 of the judgment is that the Tribunal in the said case held that the Noticee has raised unauthorised and illegal construction and has failed to comply with the statutory requirements. He has failed to obtain the Consent to Establish (CTE) and Consent to Operate (CTO) from the Himachal Pradesh State Pollution Control Board and has actually operated without obtaining Consent of the Board from its inception till 1998 and then from 2013 till date in relation to 37 rooms while the remaining 112 rooms were operated by the Noticee without Consent of the Board.
Again we may say that the said judgment has no application to the facts of the present case.
108. Reliance has next been placed by the Applicant upon the judgment of the National Green Tribunal reported in 2015 SCC Online NGT 169 S.P. Muthuraman -Versus- Union of India & Ors. wherein Circular issued by the MoEF&CC from time to time wherein it was held that some of the Project Proponents had commenced 65 construction on the basis of recommendation from the Government but before filing the application before SEIAA for grant of Environmental Clearance.
The aforesaid judgment has absolutely no application to the facts of the present case since it is nobody's case that in the present case the Environmental Clearance has not been granted to the project in question and we have already observed that the Environmental Clearance has not been challenged by the Applicant.
109. The Applicant has also relied on the judgment of the Principal Bench reported in (2017) SCC Online NGT 1848 Yogindra Mohan Sengupta
-Versus- Union of India & Ors. which related to construction in the State of Himachal Pradesh such as adjusted built up area, traffic hazards, over concentration of building, unauthorised construction, land degradation impact, indiscriminate land use, growing vehicular pollution being common problems of Shimla. One of the issue also with regard to use of green areas for the purpose of construction without referring to Site Plan. The Tribunal in its recommendation, directed that new construction in this area should be preceded by Geological Feasibility Report by qualified Geologists and the Report must be vetted by Geologists employed by the Central Government. The aforesaid judgment, in our considered opinion, has no application to the present case since extensive geological and geo- technical studies have been carried out by the Government, none of which have been assailed and contradicted on its technical aspect by the Applicant on merit.
110. For the same reason, the judgment of NGT reported in (2021) SCC Online NGT 285 Yogindra Mohan Sengupta -Versus- Union of India & Ors. also has no application to the facts of the present case. 66
111. The Applicant has next relied upon the judgment reported in 2015 SCC Online Megh 147 Shri J. M. Thangkhiew & Anr. -Versus- State of Meghalaya & Anr. The facts emerging from the case are that the State of Meghalaya is in the Zone-V of seismic activities which in metrological parlance would be an area in which the highest level of seismic activities is expected and inevitable. In the present case, the construction is not in the seismic Zone-V but is in Zone-IV where construction is permissible.
In our considered opinion, the said judgment has no application to the facts of the present case.
112. Reliance has next been placed by the Applicant on the judgment reported in 2015 SCC NGT 5 Forward Foundation A Charitable Trust
-Versus- State of Karnataka and Ors. which was in regard to certain commercial construction projects being developed by the Project Proponent in large size mixed use development project/building complexes including set up of Special Economic Zone (SEZ) park Hotels, Residential Apartments and a Mall covering approximately 80 acres on the valley land immediately abutting the Agara Lake more particularly lying between Agara and Bellandur Lakes. It is an ecologically sensitive area the valley and catchment area and Rajakaluves through Storm Water Drains which flow into the Bellandur Lake.
In our opinion, the said case has no application to the facts of the present case.
113. Reliance has also been placed upon the judgment 2021 SCC Online NGT 3107 Shailendra Jain - Versus - State of Rajasthan & Ors. The issue in the said case was with regard to encroachment of waterbody known as Dhanwada Talab/Maharaj Kalyana Sagar situated in District Jhalawar City of Rajasthan. The allegation is that 67 construction have been without land conversion in the catchment area of the water body recorded as 'Revenue Land'. The aforesaid judgment has no application to the facts of the present case.
114. The Respondent No.12 and the State Respondents submitted that they are already getting technical guidance from Jadavpur University and IIT, Roorkee with a view to have abundant precaution. We are of the opinion that a technical Consortium of Jadavpur University, IIT, Roorkee and Wadia Institute of Himalayan Geology with members nominated by respective Head of these Institutions should be in place to examine the technical stability annually. The State of Sikkim should make necessary arrangements in this regard.
115. Upon a consideration of the facts of the case and the submissions of the learned Counsel for the parties, we find no merit in the present Original Application and the same is accordingly dismissed.
116. I.As., if any, stand dismissed accordingly.
117. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM February 28, 2025, Original Application No.38/2022/EZ (I.A. No.131/2022/EZ, I.A. No.68/2024/EZ, I.A. No.69/2024/EZ & I.A. No.120/2024/EZ) SKB 68