Kerala High Court
Green Vistas Infrastructure ... vs Union Of India on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
1943
RP NO. 469 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 3870/2020 OF HIGH
COURT OF KERALA, ERNAKULAM
REVIEW PETITIONER/PETITIONER IN WPC:
GREEN VISTAS INFRASTRUCTURE PROJECTS
G-159, PANAMPILLY NAGAR, ERNAKULAM-682 036,
REPRESENTED BY ITS AUTHORISED SIGNATORY, MR.
SAURABH GULECHHA
BY ADV MILLU DANDAPANI
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY MINISTRY OF ENVIRONMENT, FORESTS
AND CLIMATE CHANGE CGO 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.
Review Petition No.469 of 2021
in
W.P.(C) No.3870 of 2020 2
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-695 033, REPRESENTED BY ITS DIRECTOR
8 ADDL.R8 THE VILLAGE OFFICER
VILLAGE OFFICE, THRIKKAKKARA, KAKKANAD, KOCHI-
682 030.
BY ADV SRI.HARIDAS P.NAIR, CGC
BY SRI. G.G. MANOJ, SC
BY SRI. M.P.SREEKRISHNAN, SC
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Review Petition No.469 of 2021
in
W.P.(C) No.3870 of 2020 3
P.B.SURESH KUMAR, J.
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Review Petition No.469 of 2021
in
W.P.(C) No.3870 of 2020
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Dated this the 20th day of October, 2021
ORDER
Petitioner in the writ petition is the review petitioner.
They are 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
Review Petition No.469 of 2021
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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 said purpose. The petitioner, in the
circumstances, obtained 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. On the strength of Ext.P1 Certificate, the
petitioner commenced the construction of the first two blocks
of the project. 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
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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 stated that nevertheless, with a
view to give confidence to the investors and potential buyers
of residential apartments in the project, the petitioner
preferred Ext.P6 application on 31.07.2012 in terms of the EIA
Notification before the State Environment Impact Assessment
Authority (SEIAA) for environmental clearance for their project.
On Ext.P6 application, the State Level Expert Appraisal
Committee (SEAC) took the view that the petitioner should
have obtained environmental clearance before commencing
the construction and they are, therefore, to be proceeded
against for having committed violation of the EIA Notification
and made a recommendation to that effect to the SEIAA. On
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
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petitioner till environmental clearance is issued for the project.
2. While so, the Central Government issued
Ext.P23 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.
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, as per Ext.P24 order, the Expert Appraisal
Committee confirmed the case of the petitioner to be one of
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violation of the EIA Notification and directed that action shall
be taken against the petitioner. In Ext.P24, it was also ordered
that there shall be an environmental impact assessment and
an environment management plan for the project of the
petitioner and the environmental clearance shall be granted for
the project only after successful implementation of the
environment management plan. 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 submitted by the petitioner for
environmental clearance again.
3. Pursuant to Ext.P25 notification, the SEAC took
up the application of the petitioner for environmental clearance
for decision. In the meanwhile, the sub committee constituted
by the SEAC reported that the petitioner continued the
construction while the application for environmental clearance
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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, on 14.01.2020, the SEAC decided to
recommend the SEIAA to issue stop memo to the petitioner
and also to initiate proceedings against the petitioner for
violation of EIA Notification and the said recommendation of
the SEAC has been accepted by the SEIAA.
4. In the meanwhile, on 10.02.2020, the
petitioner instituted the writ petition alleging, among others,
that insofar as the petitioner commenced construction of the
project based on Ext.P1 certificate issued before the EIA
notification, they are not required to obtain environmental
clearance for the project. It was also alleged by the petitioner
in the writ petition that since the petitioner was 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
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deemed to have been granted the environmental clearance
sought for. The relief sought by the petitioner in the writ
petition, in the circumstances, was for a declaration that they
are not obliged to obtain environmental clearance for the
project. Alternatively, the petitioner also sought a declaration
that since no decision was communicated on their application
for environmental clearance within 105 days as prescribed by
clause 8 of the EIA Notification, the petitioner is deemed to
have been granted environmental clearance.
5. After hearing the learned counsel for the
parties, the following questions were formulated for decision
in the writ petition:
(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
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Notification?
6. This Court found that there is nothing on
record to indicate as to whether the petitioner has commenced
construction in connection with the project before 14.09.2006.
It was also found by this Court that even if it is found that the
petitioner has commenced the construction of the first two
blocks of the project before 14.09.2006, insofar as the
petitioner themselves have applied for environmental
clearance after completing the first two blocks, for the
remaining three blocks of the project, they cannot be heard to
say that EIA Notification does not apply to the project,
especially since the last three blocks of the project by itself
was a project for which environmental clearance was required
in terms of the EIA Notification. It was observed by this Court
in the judgment sought to be reviewed that the said view is
taken since environmental clearance is required in terms of the
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EIA Notification even for expansion of the existing projects
which would cross the threshold limits given in the schedule of
the Notification after the expansion. Despite the findings
aforesaid, this Court disposed of the writ petition directing
respondents 3 and 4 to dispose of finally the application of the
petitioner for environmental clearance, having regard to the
present stage of construction. According to the petitioner, the
judgment rendered in the writ petition is vitiated by errors
apparent on the face of the record and hence, this review
petition.
7. Heard the learned counsel for the review
petitioner as also the learned Standing Counsel for
respondents 3 and 4.
8. The learned counsel for the review petitioner
submitted that the report submitted by the seventh
respondent, the Kerala State Remote Sensing and
Environmental Centre, pursuant to the direction issued by this
Review Petition No.469 of 2021
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Court on 12.08.2020 would clearly establish that the petitioner
has commenced the construction of the project during 2005-
2006 itself and the finding to the contrary rendered by this
Court without taking note of the said report is vitiated, and
warrants interference in exercise of the review jurisdiction of
this Court. According to the learned counsel, in the light of the
said report of the seventh respondent, this Court ought to have
held that the EIA Notification does not apply to the project of
the petitioner. It was also submitted by the learned counsel
that the project of the petitioner from the very inception was
for construction of five blocks of residential apartments and
insofar as the materials on record would show that the
petitioner has commenced the construction of the first two
blocks atleast before the EIA Notification, the view taken by
this Court that the last three blocks of the project is liable to be
treated as expansion of the completed blocks for the purpose
of the EIA Notification, is unsustainable in law. According to
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the learned counsel, a project implemented in two phases
shall be regarded as one project and the phase of the project
which is not completed, cannot be regarded as an expansion of
the completed project for the purposes of the EIA Notification.
9. I have examined the arguments of the learned
counsel for the petitioner.
10. It is seen that on 12.08.2020, this Court
directed the seventh respondent to file a report making
available the satellite imagery showing the nature and lie of
the land of the petitioner (i) as on 14.09.2006, the date on
which the Environment Impact Assessment Notification, 2006
came in force; (ii) as on 06.11.2006, the date on which the
State Government extended certain provisions of the Kerala
Municipality Act, 1994 and all the provisions of the Kerala
Municipality Building Rules, 1999 to the erstwhile Thrikkakkara
Grama Panchayat; and (iii) as on the date of commencement of
the construction of each block in that project. In response to
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the said interim order, the seventh respondent has filed a
report on 17.09.2020 and it was placing reliance on the said
report that the learned counsel for the petitioner argued that
the finding of this Court that there is nothing on record to
indicate that the petitioner has commenced the construction of
the project prior to the EIA Notification is vitiated by errors
apparent on the face of the record. The observations and
conclusions made by the seventh respondent in the report filed
on 17.09.2020 based on the satellite data referred to therein
read thus:
"OBSERVATIONS &CONCLUSION
As per the Survey of India toposheet of year 1967, the survey
plot 359/3 was observed as paddy land. The available satellite
data sets analyzed are of 08/12/2005, 11/12/2006, 06/01/2008
and 18/03/2020. The imagery available for the year 2006 in
public domain is on 11/12/2006, so not able to produce the
imagery of 06/11/2006.
The plot was observed under fallow land towards south
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and with exposed soil towards north in the data of 08/12/2005.
In the imagery of 11/12/2006, the south part was also observed
partially under exposed soil, with construction activities
towards north and southwest and central part. In imagery of
06/01/2008, more construction activities were observed
towards north and southern part with soil
exposure/construction materials. The imagery of 18/03/2020
shows more buildings/structures towards south and north part.
As per the order of the Hon'ble Court dated 18/06/2020,
the available satellite imagery is for 11/12/2006 (Figure.4).
Therefore the requirement in No. (i) & (ii) in para 11 of the
order dated 18/06/2020, the analysis has been carried out with
imagery dated 11/12/2006 as satellite imagery as on
06/11/2006 is not available. In respect of requirement No. (iii),
it is respectfully brought to the notice of the Honourable Court
that exposed soil observed in northern part in 08/12/2005 data.
Construction activities observed in northern part and exposed
soil in south in 11/12/2006 data. The data of year 2008 shows
more construction activities towards north and south part. The
data of year 2020 shows more buildings/structures towards
south and north part.
This report is being submitted in compliance with the
direction in order dated 18/06/2020 in W.P(C) No.3870/2020."
As evident from the extracted portion of the report, the
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satellite imagery of the land of the petitioner as on 06.11.2006
was not available with the seventh respondent. Instead, the
two satellite imagery of the land of the petitioner which were
available with the seventh respondent were that of 08.12.2005
and 11.12.2006. It was placing reliance on the finding in the
report that exposed soil was visible in the data of 08.12.2005
that the learned counsel for the review petitioner argued that it
shall be inferred that the petitioner commenced the
construction of the work before 14.09.2006. I do not find any
substance in the said argument, for the petitioner has not even
obtained the Certificate of the Grama Panchayat as on that
day. Ext.P1 certificate of the Grama Panchayat was obtained
by the petitioner only much later on 04.02.2006. Coming to
the imagery of the land dated 11.12.2006, as noted, the EIA
Notification came into force in the meanwhile on 14.09.2006.
In other words, the report submitted by the seventh
respondent on 17.9.2020 does not improve the case of the
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petitioner that they have commenced the construction of the
project prior to 14.09.2006. In the absence of any material to
indicate that any construction whatsoever has taken place in
the land prior to 14.09.2006, it is unnecessary to consider the
arguments advanced by the learned counsel that the
construction of the last three blocks of the project cannot be
treated as an expansion of the construction of the first two
blocks.
The review petition, in the circumstances, is without
merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
ds 10.09.2021
Review Petition No.469 of 2021
in
APPENDIX OF RP 469/2021
PETITIONER ANNEXURE
Annexure A1 A TRUE COPY OF THE OM NO
Z.11011/2/2009-IA-11(10 DATED
29.4.2009 ISSUED BY THE MINISTRY OF
ENVIRONMENT AND FORESTS (IA DIVISION)
Annexure A2 A TRUE COPY OF THE OM NO 21-270/2008-
IA 111 DATED 19.6.2013 ISSUED BY THE
MINISTRY OF ENVIRONMENT AND FORESTS
Annexure A3 A TRUE COPY OF THE ORDER BEARING NO
8/SEIAA/KL/393/2012 DATED .7.5.2014
ISSUED BY THE 3RD RESPONDENT IN CASE
OF M/S NIKUNJAM CONSTRUCTIONS PVT LTD
