Kerala High Court
Green Vistas Infrastructure ... vs Union Of India on 11 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
WP(C) NO. 3870 OF 2020
PETITIONER/S:
GREEN VISTAS INFRASTRUCTURE PROJECTS,
G-159, PANAMPILLY NAGAR, ERNAKULAM - 682 036,
REPRESENTED BY ITS AUTHORISED SIGNATORY,
MR.SAURABH GULECHHA.
BY ADVS.
K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY MINISTRY OF ENVIRONMENT, FORESTS
AND CLIMATE CHANGE, CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003, REPRESENTED BY ITS
SECRETARY.
2 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY TO
GOVERNMENT, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
3 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA),
KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR,
THAMPANOOR, THIRUVANANTHAPURAM - 695 001,
REPRESENTED BY ITS MEMBER SECRETARY.
4 STATE ENVIRONMENT ASSESSMENT COMMITTEE (SEAC),
KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR,
THAMPANOOR, THIRUVANANTHAPURAM - 695 001,
REPRESENTED BY ITS SECRETARY.
5 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, KAKKANAD,
KOCHI,ERNAKULAM - 682 030.
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6 THRIKKAKARA MUNICIPALITY,
KAKKANAD P.O., KOCHI - 682 030, REPRESENTED BY
ITS SECRETARY.
7 ADDL.R7. THE KERALA STATE REMOTE SENSING AND
ENVIRONMENTAL CENTRE,
VIKAS BHAVAN, C-BLOCK, THIRUVANANTHAPURAM,
KERALA-695033, REPRESENTED BY ITS DIRECTOR.
(IS SUO MOTU IMPLEADED AS PER ORDER DATED 18-6-
2020).
8 ADDL.R8. THE VILLAGE OFFICER
VILLAGE OFFICE,THRIKKAKKARA, KAKKANAD, PIN-682
030.
IS SUO MOTU IMPLEADED AS PER ORDER DATED 24-06-
2020.
BY ADVS.
SRI.HARIDAS P.NAIR, CGC
SRI.M.P.SREEKRISHNAN, STANDING COUNSEL
SHRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY
SRI.S.VISHNU SRI.K.J.MANURAJ, GOVERNMENT
PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.06.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.B.SURESH KUMAR, J.
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W.P.(C) No.3870 of 2020
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Dated this the 11th day of June, 2021
JUDGMENT
Petitioner is a joint venture constructing a
residential complex within the limits of the sixth respondent
Municipality. When the petitioner proposed to develop the
lands belonging to them for the said purpose during early
2006, the Kerala Municipality Building Rules, 1999, was not
implemented in Thrikkakkara Grama Panchayat, which was
later upgraded as the sixth respondent Municipality. The
proposal of the petitioner was for construction of 500
residential apartments in 5 blocks. The practice prevailing
then in Thrikkakkara Grama Panchayat for construction of
buildings in the nature of one proposed by the petitioner was
to obtain a No-objection Certificate from the Panchayat for the
purpose of construction. The petitioner, therefore obtained
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Ext.P1 certificate from Thrikkakkara Grama Panchayat on
04.02.2006 to the effect that permission of the Panchayat is
not necessary for the construction proposed by them. In
Ext.P1 certificate, it was however mentioned by the panchayat
that there shall not be any construction within three meters
from the boundaries of the adjacent public roads and that the
petitioner shall provide adequate drainage facility for the
building. On the strength of Ext.P1 certificate, the petitioner
commenced construction of the first two blocks.
2. While the construction of the first two blocks
was proceeding, on 14.09.2006, the Central Government
issued Environmental Impact Assessment Notification, 2006
(EIA Notification) under the Environment (Protection) Act,
1986. As per the EIA Notification, prior environmental
clearance is required for building projects involving built up
area exceeding 20,000 square meters. According to the
petitioner, the requirement in the EIA Notification does not
apply to their project since they have commenced the
construction of the project before 14.09.2006. It is also
alleged by the petitioner that EIA Notification has been
subsequently clarified to that effect by the Central
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Government by issuing a circular on 21.11.2006. It is stated
that nevertheless, with a view to give confidence to the
investors and potential buyers of residential apartments in the
project, the petitioner preferred an application before the
State Environment Impact Assessment Authority (SEIAA) for
environmental clearance for their project in terms of the EIA
Notification. Ext.P6 is the application preferred by the
petitioner in this regard on 31.07.2012.
3. Ext.P6 application was forwarded by the
SEIAA to the State Level Expert Appraisal Committee (SEAC).
The SEAC took the view that the petitioner has commenced
the construction of the project without obtaining building
permit from the local authority and they are therefore not
entitled to the environmental clearance sought for. A
recommendation was made by the SEAC in the circumstances
for rejection of the application without prejudice to the right
of the petitioner to prefer a fresh application after regularizing
the construction. When the matter was taken up by the SEIAA
thereupon, petitioner made Ext.P8 submission pointing out
that the construction was on the strength of Ext.P1 certificate
issued by the local authority and the same cannot therefore
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be considered as unauthorised. It is stated that in the light of
Ext.P8 submission, the recommendation made by the SEAC
was not accepted by the SEIAA and the application was
consequently remitted to the SEAC for fresh consideration.
Thereupon, the SEAC took the view that the petitioner should
have obtained environmental clearance before commencing
the construction of the project in terms of the EIA Notification,
and directed the petitioner to file an affidavit to the effect that
violation of EIA Notification has occurred and they will not
repeat the same.
4. It is stated by the petitioner that though the
question of violation of the EIA Notification does not arise in
the case of the petitioner as they have commenced the
construction of the project prior to the EIA Notification, with a
view to avoid further legal complications concerning the
project, the petitioner has submitted an affidavit before the
SEAC as directed by them with the hope that on filing the
same, the application preferred by the petitioner for
environmental clearance would be processed. It is also stated
by the petitioner that in the light of the affidavit filed by the
petitioner, the SEAC has decided to conduct a site visit and to
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verify the authenticity of the various statutory approvals
obtained by the petitioner for the project in the meanwhile.
After the site inspection and verification of the authenticity of
the statutory approvals obtained by the petitioner, the SEAC
took the view that since the petitioner commenced the
construction of the project without obtaining prior
environmental clearance, they are to be proceeded against for
having committed violation of the EIA Notification and made a
recommendation to that effect to the SEIAA. Pursuant to the
said recommendation, the SEIAA has decided to proceed
against the petitioner for having violated the EIA Notification
and to suspend the construction activities undertaken by the
petitioner till environmental clearance is issued for the project.
In addition, the SEIAA has directed the District Collector to
initiate steps for prosecution of the petitioner under Sections
15 and 19 of the Environment (Protection) Act, 1986. Ext.P17
is the order issued by the Member Secretary of the SEIAA in
this regard on 7.9.2015. In terms of Ext.P17, the District
Collector, Ernakulam was directed to enforce the said order. It
is seen that no action was taken by the District Collector
pursuant to the directions issued by the SEIAA, as the District
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Collector entertained a doubt as to his authority to do so
under the Environment (Protection) Act, 1986.
5. In the meanwhile, with effect from
06.11.2006, the State Government has extended the
provisions of the Kerala Municipality Building Rules, 1999 to
Thrikkakkara Grama Panchayat by notification issued under
Section 274(1) of the Kerala Panchayat Raj Act, 1994. Later,
with effect from 30.11.2010, the Thrikkakkara Grama
Panchayat was upgraded as a Municipality. When the
Panchayat was upgraded as Municipality, the petitioner
applied to the Municipality for regularization of the
construction. On the said application, on 23.12.2014, the
Municipality regularized the construction of the petitioner by
issuing Ext.P16 building permit. Despite Ext.P17 order, the
petitioner continued the construction of the project on the
strength of Ext.P16 building permit and obtained even
occupancy certificates in respect of the first three blocks from
the Municipality. The occupancy certificate in respect of the
first block was obtained by the petitioner on 23.12.2014 and
the occupancy certificate in respect of the second block was
obtained by the petitioner on 17.02.2017. Similarly, the
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occupancy certificate in respect of the third block was
obtained by the petitioner on 25.09.2018.
6. While so, the Central Government issued a
notification under the Environment (Protection) Act, 1986 on
14.03.2017, providing that where projects or activities
requiring prior environmental clearance in terms of the EIA
Notification are brought for environmental clearance after
commencement of the construction work, appraisal of the
same for grant of environmental clearance shall be considered
only by the Expert Appraisal Committee at the central level.
Ext.P23 is the notification issued by the Central Government
in this regard. It is stated that though the petitioner was not
obliged to obtain environmental clearance for the project in
terms of the EIA Notification, with a view to resolve the issues
relating to the project, they preferred a fresh application for
environmental clearance before the Expert Appraisal
Committee at the Central level in terms of Ext.P23
notification. On the said application, the Expert Appraisal
Committee confirmed the case of the petitioner to be one of
violation of the EIA Notification and ordered that action shall
be taken against the petitioner by the State Pollution Control
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Board and that occupancy certificate shall not be issued for
the project until the project is granted environmental
clearance. Ext.P24 is the decision taken by the Expert
Appraisal Committee at the Central level in this regard in their
meetings held from 19.02.2018 to 21.02.2018. In Ext.P24, it
was also ordered that there shall be a Terms of Reference for
undertaking the environment impact assessment and for
preparation of environment management plan concerning the
project of the petitioner; that the petitioner shall be required
to submit bank guarantee to the State Pollution Control Board
for the amount required for remediation plan and natural and
community resource augmentation plan prior to the grant of
environment clearance, the quantum of which shall be
recommended by the SEAC and finalized by the SEIAA and
that the bank guarantee shall be released only after
successful implementation of the environment management
plan, followed by recommendations by SEAC and approval by
SEIAA. Ext.P23 notification, in terms of which Ext.P24 order
was passed, was subsequently amended on 08.03.2018 by
Ext.P25 notification issued by the Central Government, as per
which the SEAC was authorised to deal with the application
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submitted by the petitioner for environmental clearance.
7. Pursuant to Ext.P25 notification, though SEAC
considered the application of the petitioner for environmental
clearance again on 04.12.2018, the decision thereon was
deferred as it found that some more information was required
from the petitioner for consideration of the application.
Ext.P26 communication was consequently issued to the
petitioner by the Administrator of the SEIAA and the
petitioner has furnished the information called for. The
application was considered again by the SEAC in their meeting
held during the third week of September, 2019. In the said
meeting, the petitioner submitted the environment impact
assessment report based on the Terms of Reference approved
by the SEAC. In the said meeting, the SEAC constituted a sub
committee for appraisal of the report for environmental
clearance and adjourned the matter for the report of the sub
committee. The application was taken up later by the SEAC in
its meeting held during the last week of November, 2019. The
representatives of the petitioner did not appear in the said
meeting for hearing. The application of the petitioner was
consequently adjourned and taken up by the SEAC again in
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their meeting held on 24.12.2019. In the meanwhile, the sub
committee constituted by the SEAC reported that the
petitioner continued the construction while the application for
environmental clearance was pending and completed almost
even the fourth block and started the land development for
the fifth block. In the light of the said report, the SEAC
decided to recommend the SEIAA to issue stop memo to the
petitioner and also to initiate proceedings for violation of EIA
Notification, after affording the petitioner an opportunity of
hearing. Later, in the meeting of the SEAC held on
14.01.2020, the SEAC confirmed the said decision after
affording the petitioner an opportunity of hearing.
8. The writ petition was filed immediately
thereupon on 10.02.2020, seeking the following reliefs:
i) Issue a writ in the nature of declaration declaring
that in view of the fact that the petitioner
commenced construction activities based on
Ext.P1 NOC, the petitioner is not required to take
Environmental Clearance under the provisions of
the EIA Notification, 2006 which was issued on
14th September, 2006,
ii) Issue a writ in the nature of declaration declaring
that since the petitioner commenced construction
activities based on Ext.P1 No Objection Certificate,
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the petitioner cannot be treated as a violator
under the provisions of sections 15 and 19 of the
EIA Act, 2006 which was notified on 14 th
September 2006;
iii) Issue a writ in the nature of declaration declaring
that since the petitioner submitted Ext.P6
application on 31.7.2012 and no decision was
communicated to the petitioner, within 105 days,
as prescribed by clause 8 of the EIA Notification,
2006, the petitioner is deemed to have been
granted Environmental Clearance;
iv) pass such other orders as this Hon'ble Court
deem fit and proper in the facts and
circumstances of the case and
v) award costs.
The case set out by the petitioner in the writ petition is that
insofar as they have commenced construction of the project
based on Ext.P1 certificate issued before the EIA notification,
they are not required to obtain environmental clearance. The
petitioner has also set out a case that since they were not
communicated the decision on Ext.P6 application preferred by
them for environmental clearance on 31.07.2012 within 105
days as provided for in clause 8 of the EIA Notification, they
are deemed to have been granted the environmental
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clearance sought for.
9. During the pendency of the writ petition, the
SEIAA has accepted the recommendation made by the SEAC
on 14.01.2020 and issued stop memo to the petitioner and
also directed the State Pollution Control Board to initiate
action against the petitioner under Section 19 of the
Environment (Protection) Act, 1986. Ext.P30 is the
communication issued in this regard by the Administrator of
the SEIAA to the petitioner. Pursuant to Ext.P30, the District
Collector addressed to the District Superintendent of Police to
enforce the stop memo issued to the petitioner by SEIAA. In
the light of Ext.P30, the petitioner has stopped the
construction activities.
10. A statement has been filed in the matter on
behalf of the SEIAA and the SEAC by their Standing Counsel.
11. A counter affidavit has been filed by the
Secretary of the sixth respondent Municipality in the matter
stating, among others, that the petitioner has commenced the
construction after obtaining Ext.P1 certificate; that the
requirement for construction of a building in the erstwhile
Thrikkakkara Grama Panchayat prior to the introduction of the
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Kerala Municipality Building Rules, 1999 was only to obtain a
certificate in the nature of Ext.P1 from the Panchayat and that
the petitioner had completed the piling works and started the
works of the super structure in respect of two blocks in terms
of the entries in the register maintained by the Municipality as
on 22.05.2007. It is also stated in the counter affidavit that in
terms of the circular issued by the Government, building
permit is required to be obtained for all buildings, the
construction of which was though commenced based on the
No-objection Certificate issued by the erstwhile Panchayat,
but not completed before the enforcement of the Kerala
Municipality Building Rules, 1999 in the Panchayat and it is in
the light of the said circular, Ext.P16 building permit was
issued to the petitioner after collecting the permit fee.
12. In the reply affidavit filed by the petitioner to
the statement filed on behalf of the SEIAA and the SEAC, it is
stated that the petitioner has sent a reply to Ext.P17 order
issued by the Member Secretary of SEIAA suspending the
construction activities undertaken by the petitioner. Likewise,
it is stated in the said reply affidavit that similarly situated
builders have been permitted to continue construction without
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environmental clearance by SEIAA and it is in such
circumstances that they continued the construction despite
Ext.P17 order.
13. On 01.10.2020, this court passed following
interim order:
This writ petition is pending before this
court for the last more than six months. The matter is
related to environmental clearance required to be
obtained by the petitioner for the construction
undertaken by them.
2. The learned Standing Counsel for the
State Environmental Impact Assessment Authority
submits that the petitioner had submitted two
applications. The learned Senior counsel appearing for
the petitioner submits that there are no two applicants;
both are in relation to the same project. Any how, it is
desirable that the applications are taken into its logical
conclusion within a period of six weeks after notice to
the petitioner. The petitioner shall be given an
opportunity of hearing either in person or through
electronic medium. The learned senior counsel for the
petitioner would point out that the 3rd respondent has
given environmental clearance to many similarly
situated projects.
3. The petitioner is at liberty to move
the 3rd respondent for any permission to complete the
existing work. If such a request is made, the same shall
be considered without any delay.
Post on 17.11.2020.
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Pursuant to the said interim order, the SEIAA considered the
matter and ordered to inform the petitioner that
environmental clearance cannot be issued before completing
the action for violation of the EIA Notification. The decision
taken by the SEIAA in this regard during its meeting held
during the 3rd week of October, 2020 is part of the
proceedings as Ext.P39. In Ext.P39, the SEIAA has also
requested the SEAC and the State Pollution Control Board to
expedite proceedings initiated against the petitioner for
violation of the EIA Notification.
14. Heard the learned counsel for the petitioner,
the learned Government Pleader, the learned Standing
Counsel for the sixth respondent as also the learned Standing
Counsel for respondents 3 and 4.
15. The learned counsel for the petitioner
vehemently argued, placing reliance on Ext.P1 certificate, that
they have started the construction of the project long before
the EIA Notification and the requirement to obtain prior
environmental clearance does not therefore apply to their
project. It was pointed out by the learned counsel that this
aspect has been clarified subsequently by the Central
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Government in terms of Circular F.No.J-11013/41/2006-1A-II(I)
dated 21.11.2006. It was also pointed out by the learned
counsel that the issue is covered in favour of the petitioner by
the decision of the Division Bench of this Court in All Kerala
River Protection Council v. State of Kerala, 2015 (2) KLT
78. It was submitted by the learned counsel that the
consistent case of the petitioner all throughout was that the
petitioner has applied for environmental clearance only for the
comfort of the investors and buyers of residential apartments
in the project. It was argued by the learned counsel that the
proceedings initiated against the petitioner for the alleged
violation of EIA Notification is therefore, per se illegal and
arbitrary. It was also pointed out by the learned counsel that
none of the constructions of similar nature carried out within
the limits of the sixth respondent Municipality based on similar
No-objection Certificates issued by the erstwhile Grama
Panchayat have obtained environmental clearance in terms of
EIA Notification and no action whatsoever has been initiated in
respect of the said constructions. It was also argued by the
learned counsel that even assuming that the EIA Notification
applies to the project of the petitioner, they are denied
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environmental clearance on the incorrect assumption that the
constructions are unauthorised insofar as they have been
made without obtaining building permit. It was pointed out
that building permit was not insisted at the relevant time in
Thrikkakkara Grama Panchayat as the Kerala Municipality
Building Rules, 1999 were not implemented, and the only
requirement for construction then was to obtain a No-
objection Certificate from the Panchayat. It was pointed out
that the petitioner has not only obtained the No-objection
Certificate before the construction, but also obtained building
permit for the project later when the Building Rules were
implemented in the Panchayat. It was argued that in the light
of Ext.P16 building permit, the constructions carried out by
the petitioner cannot be said to be unauthorised in any
manner and there is therefore absolutely no reason to deny
environmental clearance for the project, especially when
similar and identical structures were granted environmental
clearance. It was also argued by the learned counsel that at
any rate, insofar as the decision on Ext.P6 application
preferred by the petitioner for environmental clearance has
not been communicated to the petitioner within 105 days, the
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petitioner is deemed to have been issued environmental
clearance in terms of clause 8 of the EIA Notification. It was
pointed out that in the said circumstances, even if it is found
that the petitioner is not entitled to environmental clearance
for the project, proceedings can be initiated only for
cancellation of the environmental clearance and no
proceedings whatsoever could be initiated against the
petitioner for violation of the EIA Notification.
16. Per contra, the learned Standing Counsel for
respondents 3 and 4 submitted that insofar as the petitioner
has not completed the construction of their massive
residential project before introduction of EIA Notification, they
are bound to comply with the same. It was also pointed out by
the learned Standing Counsel counsel that the requirement in
the EIA Notification is to obtain prior environmental clearance
and insofar as the petitioner has commenced the construction
of the project without obtaining environmental clearance and
continued the construction when the application for
environmental clearance was pending consideration, the
statutory authorities cannot be found fault with for having
initiated proceedings against the petitioner for violation of the
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EIA Notification. It was also pointed out by the learned
Standing Counsel that the competent authorities would be
considering the application of the petitioner for environmental
clearance after completion of the proceedings initiated against
the petitioner for violation of the EIA Notification.
17. Having bestowed my attention to the
contentions advanced by the learned counsel for the parties
and having perused the materials on record, it is seen that the
following questions arise for consideration in the matter:
(i) Whether the petitioner was required to obtain
environmental clearance for their project in terms of the
EIA Notification?
(ii) Whether the petitioner is deemed to have been
issued environmental clearance in terms of clause 8 of
the EIA Notification? and
(iii) Whether respondents 3 and 4 are justified in
initiating proceedings against the petitioner for violation
of the EIA Notification?
18. Question (i): As noted, the Kerala Municipality
Building Rules, 1999 was implemented in the erstwhile
Thrikkakkara Grama Panchayat only with effect from
06.11.2006. It is admitted by the Secretary of the sixth
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respondent Municipality in the counter affidavit that the
practice prevailing prior to the implementation of the Kerala
Municipality Building Rules, 1999 in the Panchayat was to
obtain a certificate in the nature of Ext.P1 from the Panchayat
for construction of buildings. In other words, the
commencement of the construction of the project by the
petitioner on the strength of Ext.P1 certificate cannot be said
to be illegal. As noted, EIA Notification was issued by the
Central Government on 14.09.2006, after about seven months
from the date of issuance of Ext.P1 certificate. There is
nothing on record to indicate as to whether the petitioner has
in fact commenced the construction before 14.09.2006. Later,
after about a month, the Municipality Building Rules, 1999 was
also introduced in the Panchayat, with effect from 06.11.2006.
There is nothing on record also to indicate as to whether the
petitioner has commenced construction of the project prior to
06.11.2006. Even assuming that the petitioner has
commenced construction prior to 14.9.2006, there is nothing
on record to indicate as to the stage at which the construction
had reached at the time when the Kerala Municipality Building
Rules, 1999 was implemented in the Panchayat. The only
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material available on record in this regard is Ext.R6(1)
produced by the Municipality. As indicated, after
implementation of the Kerala Municipality Building Rules,
1999, the erstwhile Panchayat has recorded in a register the
stage of the various constructions commenced prior to the
implementation of the Building Rules in the Panchayat.
Ext.R6(1) is the relevant page in the said register pertaining to
the construction of the petitioner. It is seen from the counter
affidavit filed by the Municipality that the stage of the
construction of the petitioner recorded in Ext.R6(1) is the
stage of construction as on 22.5.2007. Ext.R6(1) indicates that
as on 22.5.2007, the petitioner has completed only the piling
works of the first two blocks. The question whether the
petitioner was required to obtain environmental clearance for
their project in terms of the EIA Notification is to be
considered in the aforesaid background.
19. Clause 2 of the EIA Notification reads thus:
Requirements of prior Environmental Clearance
(EC):- The following projects or activities shall require
prior environmental clearance from the concerned
regulatory authority, which shall hereinafter referred to
be as the Central Government in the Ministry of
Environment and Forests for matters falling under
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Category 'A' in the Schedule and at State level the State
Environment Impact Assessment Authority (SEIAA) for
matters falling under Category 'B' in the said Schedule,
before any construction work, or preparation of land by
the project management except for securing the land, is
started on the project or activity:
(i) All new projects or activities listed in the
Schedule to this notification;
(ii) Expansion and modernization of existing
projects or activities listed in the Schedule to this
notification with addition of capacity beyond the
limits specified for the concerned sector, that is,
projects or activities which cross the threshold
limits given in the Schedule, after expansion or
modernization;
(iii) Any change in product - mix in an existing
manufacturing unit included in Schedule beyond
the specified range.
It is clear from the extracted clause of the EIA Notification that
the environmental clearance provided for in terms of the said
notification for a project is one to be obtained before
commencement of the construction work of the project. It is
also clear from the extracted clause that environmental
clearance in terms of the notification is required to be
obtained for all new projects listed in the schedule to the
notification and also for expansion of the existing projects,
which cross the threshold limits given in the schedule, after
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the expansion. Therefore, there cannot be any doubt that the
question as to whether environmental clearance is required
for a particular project is to be determined, having regard to
the fact as to whether the project is one existing as on the
date of the notification. A building project can be said to be
existing only if its construction has already been commenced,
for otherwise, the same would be a project in the
contemplation of the project proponent, and such a project
cannot be said to be existing. In other words, even in a case
where a building permit in terms of the applicable rules has
been obtained by the project proponent, environmental
clearance is required for the same if, the construction work of
the project has not commenced as on the date of the EIA
Notification. The said view has been taken by this court in
Kent Constructions Private Ltd. v. Corporation of Kochi,
2013 SCC Online Ker 21912.
20. Reverting to the facts, as noted, the materials
on record are not sufficient to render a finding as to whether
the petitioner has commenced the construction of the project
before 14.09.2006, the date on which the EIA Notification was
issued. Ext.R6(1) would indicate only the stage of construction
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as on 22.05.2007. As noted, Ext.R6(1) indicates that the
petitioner has only completed the piling work of the first two
blocks and started the superstructure work of the said two
blocks as on the said date. The pointed question is as to
whether the petitioner could be relieved of the obligation to
obtain environmental clearance for the project on account of
the said construction. Though the petitioner recites in the writ
petition that they are not obliged to obtain environmental
clearance for the project as they have commenced the
construction of the project before the EIA Notification and that
they have applied for environmental clearance with a view to
comfort the investors and buyers of the apartments in the
complex, the case put forth by the petitioner in Ext.P8
submission made before the SEIAA was that they have
completed the construction of the first two blocks for which
environmental clearance was not required and that they
propose to construct the remaining three blocks with a built
up area of 33,916 square meters, for which they need
environmental clearance before commencement of the
construction. Paragraphs 6 and 9 of Ext.P8 submission read
thus:
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"6. That, we have started the construction and
substantial work was completed on 14/09/2006 for tower
1 & tower 2. There are about 240 apartments in these
two towers and are ready for occupancy. Majority of
these apartments are sold out and hence a third party is
also created. No Environmental Clearance is required for
these two towers.
xxx
9. That, currently, we propose to start
construction of the remaining 3 towers with a built-up
area 33,916 sq.m. and for which we need prior
environmental clearance before the start of construction.
In terms of the EIA Notification, environmental clearance is
required for construction of projects involving built up area
exceeding 20,000 square meters. In other words, even if it is
found that the petitioner was not required to obtain
environmental clearance for the first two blocks of the project
as claimed by them in Ext.P8 submission, the construction of
which is stated to have begun before the EIA Notification,
environmental clearance was certainly required for the
remaining three towers proposed by the petitioner during the
year 2012 when they made Ext.P8 submission. I take this view
also for the reason that in terms of the EIA Notification,
environmental clearance is required even for expansion of the
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existing projects which would cross the threshold limits given
in the schedule after the expansion.
21. The circular of the Central Government
referred to by the learned counsel for the petitioner dated
21.11.2006 provides that EIA Notification does not apply to
projects for which Consent to Establish under the Water
(Prevention and Control of Pollution) Act, 1974 or Air
(Prevention and Control of Pollution) Act, 1981 was obtained
from the State Pollution Control Board. The petitioner has no
case that they have obtained consent to establish the project
from the State Pollution Control Board in terms of the Water
(Prevention and Control of Pollution) Act, 1974 or Air
(Prevention and Control of Pollution Act) 1981. The circular
aforesaid, in the circumstances, has no application. In All
Kerala River Protection Council, this court held that EIA
Notification does not apply to granite quarries covered by
existing quarrying leases in terms of the Kerala Minor Mineral
Concession Rules as on the date of the notification. The said
decision, according to me, cannot have any application to the
case of the petitioner. The case of the petitioner that
environmental clearance is not required for their project, in
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the circumstances, is liable to be rejected and I do so.
Question (i) is answered accordingly.
22. Question (ii) : Clause 8 of the EIA Notification
reads thus:
8.Grant or Rejection of Prior Environmental
Clearance (EC): (i) The regulatory authority shall consider the
recommendations of the EAC or SEAC concerned and convey its
decision to the applicant within forty five days of the receipt of
the recommendations of the Expert Appraisal Committee or
State Level Expert Appraisal Committee concerned or in other
words within one hundred and five days of the receipt of the
final Environment Impact Assessment Report, and where
Environment Impact Assessment is not required, within one
hundred and five days of the receipt of the complete application
with requisite documents, except as provided below.
(ii) The regulatory authority shall normally accept the
recommendations of the Expert Appraisal Committee or State
Level Expert Appraisal Committee concerned. In cases where it
disagrees with the recommendations of the Expert Appraisal
Committee or State Level Expert Appraisal Committee
concerned, the regulatory authority shall request
reconsideration by the Expert Appraisal Committee or State
Level Expert Appraisal Committee concerned within forty five
days of the receipt of the recommendations of the Expert
Appraisal Committee or State Level Expert Appraisal Committee
concerned while stating the reasons for the disagreement. An
intimation of this decision shall be simultaneously conveyed to
the applicant. The Expert Appraisal Committee or State Level
Expert Appraisal Committee concerned, in turn, shall consider
the observations of the regulatory authority and furnish its
W.P.(C) No.3870 of 2020
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views on the same within a further period of sixty days. The
decision of the regulatory authority after considering the views
of the Expert Appraisal Committee or State Level Expert
Appraisal Committee concerned shall be final and conveyed to
the applicant by the regulatory authority concerned within the
next thirty days.
(iii) In the event that the decision of the regulatory authority is
not communicated to the applicant within the period specified
in sub-paragraphs (i) or (ii) above, as applicable, the applicant
may proceed as if the environment clearance sought for has
been granted or denied by the regulatory authority in terms of
the final recommendations of the Expert Appraisal Committee
or State Level Expert Appraisal Committee concerned.
(iv) On expiry of the period specified for decision by the
regulatory authority under paragraph (i) and (ii) above, as
applicable, the decision of the regulatory authority, and the final
recommendations of the Expert Appraisal Committee or State
Level Expert Appraisal Committee concerned shall be public
documents.
(v) Clearances from other regulatory bodies or authorities shall
not be required prior to receipt of applications for prior
environmental clearance of projects or activities, or screening,
or scoping, or appraisal, or decision by the regulatory authority
concerned, unless any of these is sequentially dependent on
such clearance either due to a requirement of law, or for
necessary technical reasons.
(vi) Deliberate concealment and/or submission of false or
misleading information or data which is material to screening or
scoping or appraisal or decision on the application shall make
the application liable for rejection, and cancellation of prior
W.P.(C) No.3870 of 2020
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environmental clearance granted on that basis. Rejection of an
application or cancellation of a prior environmental clearance
already granted, on such ground, shall be decided by the
regulatory authority, after giving a personal hearing to the
applicant, and following the principles of natural justice.
As noted, sub clause (i) of clause 8 provides that the
regulatory authority for grant of environmental clearance shall
convey its decision on the application for prior environmental
clearance to the applicant within 45 days of the receipt of the
recommendations of the Expert Appraisal Committee
concerned or within 105 days of the receipt of the final
Environment Impact Assessment Report, and where
environment impact assessment is not required, within 105
days of the receipt of the complete application with requisite
documents, except as provided in the succeeding sub clauses
of the said clause. Sub clause (iii) of clause 8 provides that in
the event that the decision of the regulatory authority is not
communicated to the applicant within the period specified in
sub clause (i), the applicant may proceed as if environmental
clearance sought for has been granted or denied by the
regulatory authority in terms of the final recommendations of
the Expert Appraisal Committee concerned. It is placing
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reliance on sub clause (iii) of clause 8 that the petitioner
contends that insofar as the application for environmental
clearance preferred by the petitioner has not been disposed of
within 105 days of the receipt of the same, the petitioner is
deemed to have been granted environmental clearance.
23. I am unable to accept the aforesaid
contention of the petitioner. Sub clause (iii) of clause 8 of the
EIA Notification would apply only in a case where the Expert
Appraisal Committee has made its final recommendation
either to grant or to reject the environmental clearance
sought by the petitioner. The fiction created under sub clause
(iii) is not that the application made by the project proponent
is deemed to have been granted, if a decision is not
communicated on the application. On the other hand, the
fiction is that the recommendations of the Expert Appraisal
Committee, after scoping and due appraisal, whether
approving or rejecting the proposal, are to be treated as the
decision of the Regulatory Authority. In the instant case, the
Expert Appraisal Committee has not submitted their final
recommendations to the Regulatory Authority at all. The
petitioner cannot, therefore, be heard to contend that they are
W.P.(C) No.3870 of 2020
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deemed to have been issued environmental clearance for
their project in terms of clause 8 of the EIA Notification.
24. Question (iii):- I have found, while considering
question (I), that the petitioner was obliged to obtain prior
environmental clearance for their project in terms of the EIA
Notification. As noted, the petitioner has applied for
environmental clearance for the project and was pursuing the
same right from the year 2012. The recitals in Ext.P8
submission made by the petitioner before the SEIAA as
extracted in paragraph 20 above would indicate beyond doubt
that the petitioner was aware of the fact that they are bound
to obtain prior environmental clearance for their project. The
petitioner has not disputed the fact that they have completed
construction of the third block of the project and also
completed a substantial portion of the fourth block of the
project, without obtaining prior environmental clearance, that
too, during the pendency of the application for environmental
clearance and ignoring Ext P17 order of the SEIAA. In the
circumstances, SEIAA cannot be blamed for having initiated
steps against the petitioner for violation of the EIA
Notification. Question (iii) is answered accordingly.
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25. As noted, though this Court passed an interim
order on 1.10.2020 directing the SEIAA to take up the
application preferred by the petitioner for environmental
clearance to its logical end, the SEIAA has taken the stand
that environmental clearance can be issued after the
conclusion of the proceedings initiated against the petitioner
for violation of the EIA Notification. It is seen that the action
provided for in the Environment (Protection) Act, 1986 for
violation of EIA Notification is prosecution under Section 15 of
the said statute. Though the SEIAA has issued directions to
the State Pollution Control Board to initiate steps for
prosecuting the petitioner, there is nothing on record to
indicate that any action has been taken by the State Pollution
Control Board in this direction. Be that as it may, even if steps
have been taken towards this end, there is no doubt that the
prosecution would be a time-consuming procedure. Should the
partly completed project remain as it is, till the culmination of
the prosecution against the petitioner is the remaining point
to be addressed, though the petitioner has not addressed
any argument on this aspect. According to me, the stand of
the SEIAA that the partly completed project should remain as
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it is, till the culmination of the prosecution against the
petitioner is unjustified, for the same would not only adversely
affect the interests of the buyers of the apartments in the
project, but also result in wastage of resources.
In the circumstances, the writ petition is disposed
directing respondents 3 and 4 to dispose of finally the
application of the petitioner for environmental clearance, as
directed in Ext.P24 decision of the Expert Appraisal
Committee at the Central level, in accordance with the law,
having regard to the present stage of construction, as
expeditiously as possible, without waiting for the culmination
of the proceedings contemplated against the petitioner for
violation of the EIA notification. It is made clear that the
petitioner will not be entitled to resume the work of the
project before the direction aforesaid is complied with.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 18.05.2021
W.P.(C) No.3870 of 2020
..36..
APPENDIX OF WP(C) 3870/2020
PETITIONER'S EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE NOC ISSUED BY 6TH
RESPONDENT DATED 04/02/2006 BEARING
NO.A4-1/2000.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE COMMANDANT GENERAL OF THE FIRE &
RESCUE DEPARTMENT BEARING NO.G2-69/09
DATED 17/02/2009.
EXHIBIT P3 TRUE COPY OF THE NO OBJECTION
CERTIFICATE ISSUED BY THE SOUTHERN
NAVAL COMMAND DATED 15/12/2014 ISSUED
FOR 5 BLOCKS.
EXHIBIT P4 TRUE COPY OF THE NO OBJECTION
CERTIFICATE ISSUED BY THE AIRPORT
AUTHORITY OF INDIA TO THE PETITIONER
DATED 27/02/2016, WHICH IS VALID TILL
26/02/2021.
EXHIBIT P5 TRUE COPY OF THE ENVIRONMENTAL
CLEARANCE BEARING
NO.19/SEIAA/KL/717/2012 DATED
10/08/2012 ISSUED TO M/S.PURAVANKARA
PROJECTS LIMITED FOR THE PROJECT PURVA
GRAND BAY.
EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT DTD.31/07/2012.
EXHIBIT P7 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE 7TH MEETING OF THE
SEAC HELD ON 1/9/2012.
EXHIBIT P8 TRUE COPY OF THE REPLY DATED
10/09/2012 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER BEARING
NO.32/SEIAA/KL/3045/2012 DATED
21/11/2012 AND THE ENVELOPE CONTAINING
SEAL ISSUED BY THE POSTAL DEPARTMENT.
W.P.(C) No.3870 of 2020
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EXHIBIT P10 TRUE COPY OF THE REPLY SUBMITTED BY
THE PETITIONER TO THE MEMBER SECRETARY
OF 3RD RESPONDENT DTD. NIL.
EXHIBIT P11 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE MEETING HELD ON
02/03/2013 BY THE SEAC.
EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT FILED BY
THE PETITIONER ON 14/08/2013.
EXHIBIT P13 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE MEETING HELD ON
09/09/2013 AND 10/09/2013 BY THE SEAC.
EXHIBIT P14 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE MEETING HELD ON
14/02/2014 AND 15/02/2014 BY THE 3RD
RESPONDENT SEAC.
EXHIBIT P15 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT ON 23/7/2014.
EXHIBIT P16 TRUE COPY OF THE REVISED BUILDING
PERMIT ISSUED BY THE SECRETARY OF THE
THRIKKARA MUNICIPALITY ON 23/12/2014
BEARING NO.BA/851/2014.
EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS BEARING
NO.32/SEIAA/KL/3045/2012 DATED
07/09/2015 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE REPLY SUBMITTED BY
THE PETITIONER ON 20/11/2015 TO 3RD
RESPONDENT.
EXHIBIT P19 TRUE COPY OF THE REPLY BEARING
NO.32/SEIAA/KL/3045/2012 RECEIVED ON
30/01/2016 BY THE PETITIONER FROM THE
SEIAA.
EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED
23/02/2016 SUBMITTED BEFORE THE 5TH
RESPONDENT.
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..38..
EXHIBIT P21 TRUE COPY OF THE COMMUNICATION BEARING
NO.M2-9293/2016 ISSUED BY THE 5TH
RESPONDENT TO 3RD RESPONDENT DTD.
15/03/2016.
EXHIBIT P22 TRUE COPY OF THE OCCUPANCY CERTIFICATE
FOR 1ST BLOCK DATED 23/12/2014.
EXHIBIT P22(A) TRUE COPY OF THE OCCUPANCY CERTIFICATE
FOR BLOCK NO.2 DATED 17/02/2017.
EXHIBIT P22(B) TRUE COPY OF THE OCCUPANCY CERTIFICATE
FOR BLOCK NO.3 DATED 25/09/2018.
EXHIBIT P22(C) PHOTOGRAPH OF THE BLOCK NO.I.
EXHIBIT P22(D) PHOTOGRAPH OF THE BLOCK NO.II.
EXHIBIT P22 (E) PHOTOGRAPH OF THE BLOCK NO.III.
EXHIBIT P23 TRUE COPY OF THE MINISTRY OF
ENVIRONMENT, FOREST AND CLIMATE CHANGE
NOTIFICATION DATED 14/03/2017.
EXHIBIT P24 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE MEETING HELD ON
19/02/2018 TO 21/02/2018 BY THE EXPERT
APPRAISAL COMMITTEE OF THE 1ST
RESPONDENT.
EXHIBIT P25 TRUE COPY OF THE MINISTRY OF
ENVIRONMENT, FOREST AND CLIMATE CHANGE
NOTIFICATION DATED 08/03/2018.
EXHIBIT P26 TRUE COPY OF THE LETTER BEARING FILE
NO.1189(A)/EC2/2018/SEIAA DATED
17/12/2018 SENT BY THE 3RD RESPONDENT
TO THE PETITIONER.
EXHIBIT P27 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT DTD. 27/07/2019.
EXHIBIT P28 TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 17/09/2019 AND
18/09/2019 BY THE 3RD RESPONDENT.
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..39..
EXHIBIT P29 TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 24/12/2019 BY THE
SEAC.
EXHIBIT P30 TRUE COPY OF THE COMMUNICATION BEARING
NO.1189(A)/EC2/2018/SEIAA DATED
23/03/2020 WITH MEETING MINUTES OF
SEIAA AND SEAC.
EXHIBIT P31 TRUE COPY OF THE COMMUNICATION BEARING
NO.1189(A)/EC2/2018/SEIAA DATED
23/03/2020 ISSUED TO THE MEMBER
SECRETARY, KERALA STATE POLLUTION
CONTORL BOARD BY 3RD RESPONDENT.
EXHIBIT P32 TRUE COPY OF THE ENVELOP RECEIVED FROM
THE 3RD RESPONDENT.
EXHIBIT P33 TRUE COPY OF THE SALE DEED NO.4644 OF
2005 DATED 17/11/2005.
EXHIBIT P34 TRUE COPY OF THE SALE DEED
NO.4702/2005 DATED 23/11/2005.
EXHIBIT P35 TRUE COPY OF THE STOP MEMO DATED
1.8.2020 ISSUED BY THE FIFTH
RESPONDENT.
EXHIBIT P36 TRUE COPY OF THE SALE DEED BEARING
NO.4260/2006 DTD.14.12.2006 IN FAVOUR
OF SRI.VIJAYAKUMAR SURANA.
EXHIBIT P37 TRUE COPY OF THE LETTER BEARING
NO.1189(A)/EC2/18/SEIAA DATED
12.11.2020.
EXHIBIT P38 TRUE COPY OF THE
REPRESENTATION/SUBMISSION SUBMITTED BY
THE PETITIONER TO THE 3RD RESPONDENT
AND ALSO COPY TO THE 4TH RESPONDENT
DTD.19.11.2020.
EXHIBIT P39 TRUE COPY OF THE MINUTES OF 105TH
MEETING OF SEIAA HELD ON 22ND AND 23RD
OCTOBER, 2020 AND THE RELEVANT PAGES
PERTAINING TO THE PETITIONERS MATTER
DECIDED BY THE 3RD RESPONDENT.
W.P.(C) No.3870 of 2020
..40..
EXHIBIT P40 TRUE COPY OF THE MINUTES OF 103RD
MEETING OF SEIAA HELD ON 24TH AND 25TH
FEBRUARY, 2020.
EXHIBIT P41 TRUE COPY OF THE RELEVANT PORTION OF
THE MINUTES OF THE 119TH MEETING OF
SEAC, KERALA AND PROCEEDINGS DATED
25.2.2021 ON ITEM NO.119.08 OF THE 3RD
RESPONDENT.
RESPONDENT'S EXHIBITS :
EXHIBIT R6(1) THE EXTRACT OF THE REGISTER OF
BUILDINGS UNDER CONSTRUCTION AS ON THE
DATE OF IMPLEMENTING BUILDING RULES.
EXHIBIT R6(2) THE REPORT PREPARED BY THE SECREATARY
OF THE 6TH RESPONDENT BASED ON THE
INSPECTION DATED 19.8.2020.
ANNEXURE R4(1) A TRUE COPY OF THE RELEVANT EXTRACT OF
THE MINUTES OF THE 105TH MEETING OF
THE SEIAA HELD ON 22-23, OCTOBER, 2020
