# THE SECRETARY, KERALA STATE COASTAL MANAGEMENT AUTHORITY v. DLF UNIVERSAL LIMITED

- **Citation:** [2018] 1 S.C.R. 146
- **Court:** Supreme Court of India
- **Decided:** 2018-01-10
- **Case number:** Civil Appeal Nos. 117-120 of 2018
- **Bench:** R. F. Nariman, Sanjay Kishan Kaul
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-kerala-state-coastal-management-authority-v-dlf-universal-limited-32624
- **Pages:** 25

## Headnote

Environmental Laws:
Environment clearance - Coastal Regulation Zone (CRZ)
Notification - Violation of - Regularisation of illegal construction
- On facts, construction of multi-storey residential complex on the
bank of Chilavannurkayal (back waters) in Kerela - Allegation
that the construction project completed in violation of CRZ
notification - Single Judge of the High Court held that the
construction was illegal, not capable of being regularized, thus
passed direction for its demolition - Division Bench of the High
Court upholding the findings of the Single Judge, set aside the order
of demolition and directed regularization on payment of Rs 1 crore
as fine - On appeal, held: Authorities continue to do a flip-flop-flip
putting the large investments at stake in a jeopardy - Specialised
authorities were to carry out the task with promptitude but their
lackadaisical attitude permitted DLF to raise the issue of a deemed
environment clearance - Alleged violations have not emerged with
clarity - Findings of the courts below on CRZ violations alleged
against DLF set aside - Approach of MoEF also appears to be
strange and a complete contradiction between what was stated
before the courts - Thus, the findings of the impugned order is set
aside whereas the fine of Rs.1 crore sustained.
Environment clearance for construction project - Application
for - Held: Need to have more single window clearance, so that
there is less uncertainty and better enforcement.
[2018] 1 S.C.R. 146
146
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Disposing of the appeals, the Court
HELD: 1.1 The importance of environment and ecological
balance requires the enforcement of various Regulations, Rules
and enactments to be strictly followed. Specialised bodies like
the Kerela Coastal Zone Management Authority (KCZMA)-
appellant have been created to deal with the Coastal Regulation
Zone (CRZ) Regulations for greater sensitivity. It is, thus, no
answer to say that it does not have an enforcement mechanism
and thus, cannot act. [Para 43][164-E]
Anil Hoble v. Kashinath Jairam Shetye (2016) 10 SCC
701; Union Territory of Lakshadweep v. Seashells Beach
Resort [2012] 5 SCR 1108 : (2012) 6 SCC 136; Esha
Ekta Apartments Cooperative Housing Society v.
Municipal Corporation of Mumbai [2013] 4 SCR 478 :
[2013] 5 SCC 357; Piedade Filomena Gonsalves v.
State of Goa [2004] 2 SCR 1135 : (2004) 3 SCC 445 -
referred to.
1.2 If the allegation of large scale violations by DLF were
to be correct there would be no alternative but to bring down the
structure. There has to be undoubtedly greater clarity on the
processes and a better understanding between various authorities
so that developers are not left in the lurch-violators have to be
punished but it cannot be that the authorities continue to do a
flip-flop-flip putting the large investments at stake in a jeopardy.
This is what appears to have happened in the instant case. [Paras
48-49][166-B-D]
1.3 It is made clear that in the future, wherever permissions
are required to come and are to be obtained before
commencement of construction, it would be no answer that activity
can be carried on without obtaining the permissions.
Simultaneously, the permissions itself are envisaged in a time
bound schedule and not through improvement of cases by
authorities running into years. Thus, from the inception itself,
there should be clarity on what is permissible and what is not.[Para
50][166-E]
1.4 In the said conspectus, if the present project is seen,
there is really no question mark over the various permissions to
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
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carry on construction having been obtained by DLF. The land
was purchased through sale deeds and the sale deeds specified
the nature of the area. It would, thus, be no answer to state that
even the Revenue authorities are oblivious to what is the nature
of the land. DLF, thus, purchased the land legally and obtained
requisite permissions

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THE SECRETARY, KERALA STATE COASTAL MANAGEMENT
AUTHORITY
v.
DLF UNIVERSAL LIMITED
(FORMERLY KNOWN AS ADELIE BUILDERS AND
DEVELOPERS PVT. LTD.) & ORS.
(Civil Appeal Nos. 117-120 of 2018)
JANUARY 10, 2018
[R. F. NARIMAN AND SANJAY KISHAN KAUL, JJ.]
Environmental Laws:
Environment clearance - Coastal Regulation Zone (CRZ)
Notification - Violation of - Regularisation of illegal construction
- On facts, construction of multi-storey residential complex on the
bank of Chilavannurkayal (back waters) in Kerela - Allegation
that the construction project completed in violation of CRZ
notification - Single Judge of the High Court held that the
construction was illegal, not capable of being regularized, thus
passed direction for its demolition - Division Bench of the High
Court upholding the findings of the Single Judge, set aside the order
of demolition and directed regularization on payment of Rs 1 crore
as fine - On appeal, held: Authorities continue to do a flip-flop-flip
putting the large investments at stake in a jeopardy - Specialised
authorities were to carry out the task with promptitude but their
lackadaisical attitude permitted DLF to raise the issue of a deemed
environment clearance - Alleged violations have not emerged with
clarity - Findings of the courts below on CRZ violations alleged
against DLF set aside - Approach of MoEF also appears to be
strange and a complete contradiction between what was stated
before the courts - Thus, the findings of the impugned order is set
aside whereas the fine of Rs.1 crore sustained.
Environment clearance for construction project - Application
for - Held: Need to have more single window clearance, so that
there is less uncertainty and better enforcement.
[2018] 1 S.C.R. 146
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Disposing of the appeals, the Court
HELD: 1.1 The importance of environment and ecological
balance requires the enforcement of various Regulations, Rules
and enactments to be strictly followed. Specialised bodies like
the Kerela Coastal Zone Management Authority (KCZMA)-
appellant have been created to deal with the Coastal Regulation
Zone (CRZ) Regulations for greater sensitivity. It is, thus, no
answer to say that it does not have an enforcement mechanism
and thus, cannot act. [Para 43][164-E]
Anil Hoble v. Kashinath Jairam Shetye (2016) 10 SCC
701; Union Territory of Lakshadweep v. Seashells Beach
Resort [2012] 5 SCR 1108 : (2012) 6 SCC 136; Esha
Ekta Apartments Cooperative Housing Society v.
Municipal Corporation of Mumbai [2013] 4 SCR 478 :
[2013] 5 SCC 357; Piedade Filomena Gonsalves v.
State of Goa [2004] 2 SCR 1135 : (2004) 3 SCC 445 -
referred to.
1.2 If the allegation of large scale violations by DLF were
to be correct there would be no alternative but to bring down the
structure. There has to be undoubtedly greater clarity on the
processes and a better understanding between various authorities
so that developers are not left in the lurch-violators have to be
punished but it cannot be that the authorities continue to do a
flip-flop-flip putting the large investments at stake in a jeopardy.
This is what appears to have happened in the instant case. [Paras
48-49][166-B-D]
1.3 It is made clear that in the future, wherever permissions
are required to come and are to be obtained before
commencement of construction, it would be no answer that activity
can be carried on without obtaining the permissions.
Simultaneously, the permissions itself are envisaged in a time
bound schedule and not through improvement of cases by
authorities running into years. Thus, from the inception itself,
there should be clarity on what is permissible and what is not.[Para
50][166-E]
1.4 In the said conspectus, if the present project is seen,
there is really no question mark over the various permissions to
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
UNIVERSAL LTD.
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carry on construction having been obtained by DLF. The land
was purchased through sale deeds and the sale deeds specified
the nature of the area. It would, thus, be no answer to state that
even the Revenue authorities are oblivious to what is the nature
of the land. DLF, thus, purchased the land legally and obtained
requisite permissions including qua the FAR, which aspect stands
explained by the Corporation as to why it is not 1.50 as alleged
by KCZMA/appellant nor 2.5 as is alleged by DLF but in the
given case was taken as 2 and that is why 1.99 FAR was permitted
so that there is no doubt about the legality of the FAR granted.
The environmental clearance was also granted and the aspect
which remained was relating to the CRZ area. The CESS did give
a report in May, 2009 categorically stating that there was no CRZI (i) land in project area or close to it but it was situated in CRZII. The well developed, constructed area in the large expanse
around the property also stood enumerated in that report.[ Paras
51-53][166-F-G; 167-A-C]
1.5 The fault of DLF was that it should have stayed its hand
till CRZ permission had also been obtained but the fact remains
that on account of delay in the same it was perceived as a deemed
permission case-rightly or wrongly. The construction in between
was also stopped but the appellant itself decided to recommend
the project proposal to MoEF on 20.3.2010 on the basis that the
narrow canal was a drainage canal. If there was any doubt about
the same, it should have been settled at that stage itself. The
sub-committee appointed by the appellant also categorically
observed that the narrow canal was a drainage canal but
recommended a fine being imposed for not obtaining prior
approval/clearance. Really speaking the matter should have ended
with that, with a quantification of the fine to be imposed. The
approach of MoEF appears to be strange and a complete
contradiction between what was stated before the High Court,
before this Court before the conclusion of hearing and then the
endeavour to slip in an additional affidavit post conclusion of
hearing.[Paras 54, 62][167-C-E; 169-B-C]
1.6 It is undoubtedly the specialised authorities who have
to carry out the task, but with promptitude. Their lackadaisical
attitude has permitted DLF to raise the issue of a deemed
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environment clearance by virtue of Clause 8(3) of the EIA
Notification of 2006. While the environment clearance was applied
on 27.11.2007, the integrated clearance was granted on 11.12.2013
after six years, while by 2012, the project stood completed.[Para
56][167-G-H; 168-A]
1.7 Insofar as the nature of the area is concerned, due
weightage is given to the revenue records, which are reflected
in the sale deeds executed. Some of the aspects which have
weighed with the courts below do not find favour. The reason is
that the alleged violations have not emerged with clarity. [Para
57][168-B]
1.8 The Coastal Regulation Zone land use map 34A
produced shows that wherever filtration ponds existed they were
so recorded. In 1995-96 much prior to the year 2000 no such
filtration ponds are recorded in the area constructed upon.
Therefore, the findings to the contrary cannot be sustained. There
could not have been a reclamation of the filtration pond by DLF.
The Google images produced on behalf of DLF show that in
September, 2003 there was no suggestion of a water body. DLF
has also taken the assistance of a report of the Institute of Remote
Sensing in respect of two Google images relied upon by the
appellant to substantiate its case and explain that there was a
large mass of stagnant water in the property of shallow depth
with vegetation below the water visible. This water appears not
to have any permanent link with the backwater of the Chillannavur
canal. The existence of the coconut trees is another aspect which
throws doubt on the submissions made on behalf of the appellant.
If the appellant had acted with promptitude at the relevant time,
the correct picture would have been available whether for or
against. [Paras 58-60][168-C-G]
1.9 The findings of the courts below on the violations alleged
against DLF are not accepted except to the extent that there is a
question mark on the issue of not having obtained prior clearance
and proceeding on the basis of a deemed clearance, which aspect,
at least for the future it is clarified that whatever be the manner
in which Clause 8(3) of Notification of 2006 is worded, it should
imply henceforth a prior clearance and necessary clarifications
should be issued by the concerned authorities in a time bound
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manner to obviate such situations to arise in the future. The
direction contained in the impugned order to deposit Rs.1 crore
(stated to be deposited) can be treated as a fine for the said
purpose. The operative directions against the Collector of the
State Government to monitor and do this task would be nonworkable and it is appropriate that this amount is transferred to
the KCZMA for purposes of better enforcement and development
of CRZ area. [Paras 65-66][169-G-H; 170-A-B]
1.10 The findings of the impugned order is set aside while
sustaining the fine of Rs.1 crore with the direction for strict
adherence to the norms in future and avoidance of such
contradictions by the authorities. It is appropriate that in view of
the professed policy to have more single window clearance, the
methodology of such processing of such applications should be
endeavoured to be simplified so that there is less uncertainty
and better enforcement. [Para 67][170-C]
Case Law Reference
(2016) 10 SCC 701
referred to
Para 45
[2012] 5 SCR 1108
referred to
Para 45
[2013] 4 SCR 478
referred to
Para 46
[2004] 2 SCR 1135
referred to
Para 47
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 117120 of 2018.
From the Judgment and Order dated 21.12.2016 of the High Court
of Kerala at Ernakulam in W. A. No. 1987 of 2014 and W. P. (C) Nos.
20555, 28102 and 33715 of 2015.
WITH
C. A. Nos. 121, 122 and 123 of 2018.
Shyam Divan, Pallav Shishodia, Kapil Sibal, Pinaki Mishra,
Krishnan Venugopal, Ranjit Kumar, Ajit Kr. Sinha, Sr. Advs., Vipin Nair,
P. B. Suresh, Prithu Garg, Abhay Pratap Singh, Reji George, John
Mathew, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena
Prakash, Vijay Shankar V. L., Manu Nair, Ishan Gaur, S. S. Shroff,
Manik Sachdeva, Nikhil Rohatgi, Shashank Khurana, Saiby Jose
Kidangoor, Sajith P. Warier, P. S. Sudheer, Renjith B. Marar, Ms. Lakshmi
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N. Kaimal, Vishnu Pazhanganat, Rajiv Nanda, Gurmeet Singh Makker,
Sanjay Kumar Pathak, S. Wasim A. Qadri, Saeed Qadri, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J. 1. Leave granted.
2. The battle of environment protection against development is a
never ending one and the present dispute primarily is an offshoot of such
a conflict. The dispute between the developers of a housing project and
the environment authorities is also one where different authorities have
taken variant stands. It is the say of the developer that they obtained all
requisite permissions and have proceeded with the project in pursuance
thereof while the coastal management authority and the environment
authority plead otherwise. From the perspective of the Kerala State
Coastal Management Authority, which is the main appellant before us, it
has been a saga of a sleeping authority - not having an afternoon siesta
but a Kumbhakarna sleep albeit of almost four years. On being woken
up, it suddenly seeks to see various violations wanting to put the clock
back. In this period things have been done and dusted and a huge project
has taken shape, which is at the final stage.
3. Now coming to the facts of the case at hand, the project in
question is of respondent No.1, which purchased nearly 5.12 acres of
property from different vendors in the year 2006 envisaging a multistorey residential complex of about 185 units located on the eastern
bank of Chilavannurkayal (backwaters) in Kerala. The area in question,
as apparent from the status report of the Coastal Regulation Zone
('CRZ') itself shows that the area falls in the Kochi Corporation and the
said area, along with the adjoining panchayats is highly developed. A lot
of low lying areas including tidal marshes and filtration ponds bordering
the backwaters are alleged to have been reclaimed for construction and
other development activities by various third parties and the area close
to the site in question is well developed and built up.
4. Respondent No.1 obtained a building permit for the project in
question issued by the Corporation of Cochin (hereinafter referred to as
the 'Corporation') on 22.10.2007 under the Kerala Building Rules, 1984.
It is also not really disputed that the other linked permissions such as
NOC from State Pollution Control Board, NOC from the Fire & Rescue
Department and height clearance from the Navy was also obtained.
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
UNIVERSAL LTD.
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The builders DLF Universal Limited (formerly known as 'Adelie Builders
& Developers Private Limited') (hereinafter referred to as 'DLF') applied
for environment clearance to the Ministry of Environment and Forests
on 27.11.2007. The intervening factor was a Notification dated 14.9.2006
issued by the Ministry of Environment and Forests in furtherance of the
environment protection in exercise of power conferred by sub-section
(1) and clause (v) of subsection (2) of Section 3 of the Environment
Protection Act, 1986 (hereinafter referred to as the 'said Act') read
with clause (d) of sub-rule (3) of Rule 5 of the Environment Protection
Rules, 1986. This Notification was in supersession of the earlier
Notification of 27.1.1994. The Notification states that the process was
followed duly and in accordance with the objective of the National
Environment Policy as approved by the Union Cabinet on 18.5.2006,
such process was being modified. All new projects required prior
environmental clearance from the Central Government as applicable or
as the case may be the State Environment Impact Assessment Authority
(for short 'SEIAA') duly constituted by the Central Government under
sub-section (3) of Section 3 of the said Act. The Notification also provided
that the SEIAA would base its decision on the recommendation of the
State or Union Territory Level Expert Appraisal Committee ( for short
'SEAC') as to be constituted following the Notification and in the absence
of the setting up of these authorities, a category provided would be treated
as category 'A' project. Clause 8 dealt with the Grant or Rejection of
Prior Environmental Clearance (EC) and the relevant clauses of the
same are reproduced hereunder:
"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
Environmental Impact Assessment is not required, within one
hundred and five days of the receipt of the complete application
within requisite documents, except as provided below.
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(iii) In the event that the decision of the regulatory authority is not
communicated to the applicant within the period specified in subparagraphs (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."
5. As we have been informed, these authorities have been
constituted subsequently only on 19.12.2011 and, thus, logically in view
of what has been set out hereinabove, the project in question could
possibly have been treated as a category 'A' project. The project of
DLF was examined by the Central Expert Appraisal Committee (for
short 'CEAC') in its 63rd meeting and was approved as a "Silver Grading"
project. A suggestion was made by the CEAC that some of the project
area falls under the Coastal Regulation Zone ('CRZ') and thus, the details
of the project may be examined by the CRZ Committee of the Ministry
and a separate clearance should be acquired under the CRZ project. In
furtherance of this recommendation DLF was required to obtain the
CRZ status report from the Centre for Earth Science Studies (for short
'CESS'), Thiruvanathapuram, which is stated to be one of the seven
authorised/identified agencies. An application is stated to have been
made by DLF on 23.9.2008 to CESS, which in turn made a positive
recommendation in May, 2009, stating that the project land was situated
at CRZ II and there was no area in CRZ (I and i) in the project area or
close to it. It may be noted at this stage that there have been some
subsequent reports by CESS in September, 2011 and a communication
dated 11.8.2014 but the project was more or less over even by the first
date or was sufficiently advanced. The purport of the subsequent
developments will be considered hereinafter but suffice to say that the
first report sought to point out reclamation of backwater by DLF after
2009, earlier reclamation of filtration ponds and paddy fields and shifting
of high tide lines. The communication dated 11.8.2014 pertained to
alleged replacement of some photographs from the CESS report of May,
2009 and referred to a stream/natural canal at site that had been mapped
by the CESS.
6. It appears that DLF, however, did not wait for the environment
clearance and the construction activity went on at rapid pace at site
ostensibly on a perceived deemed clearance since there was no
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
UNIVERSAL LTD. [SANJAY KISHAN KAUL, J.]
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communication during this period of time. This is apparent from a visit
report dated 29.10.2009 of Kerala Coastal Zone Management Authority
(for short 'KCZMA')/appellant. This resulted in the KCZMA/appellant
issuing a letter dated 21.1.2010, seeking explanation for having started
construction without obtaining the necessary permissions/approval/
clearance from KCZMA/appellant. However, subsequently on 20.3.2010
in its 40th meeting the KCZMA/appellant, post discussion of the site
inspection report, decided to recommend the project proposal to the MoEF.
The relevant portion of this is extracted hereinafter:
"KCZMA has discussed the site inspection report in detail and
decided to recommend the project proposal to MoEF. The
contention of the Subcommittee that, the narrow canal encountered
in the imaginary line drawn parallel to the High Tide Line from the
Choice Garden building is only a drainage canal as has been agreed
by the meeting, since the narrow drainage canal need not be
considered as a canal. The Authority also decided to collect a full
set of modified documents as per provisions of CRZ Notification,
including existing FSI & FAR as on 19th February, 1991."
7. A sub-committee appointed by KCZMA/appellant visited the
site again and made certain recommendations dated 19.7.2010. A perusal
of the report of the sub-committee states that the construction had already
commenced and the structure of a sizeable number of floors of a multistorey residential project was nearing completion. This is stated to have
caused some impediment to the mandate to evaluate the proposed site
for CRZ clearance. It, however, records that the site falls in CRZ II
category and does not have any CRZ I(i) areas, such as mangroves. In
Survey No.1019 Choice Garden Apartments existed which was, however,
in existence prior to 19.2.1991. Insofar as the narrow canal was
concerned it is noted that the same functioned as a municipal drain for
waste water drainage from urban conglomeration of the northern side
of the project site. The residential apartment construction NCR II was
found to be permissible but the proposed construction has to be on the
landward side of the existing road. The clarifications given by the MoEF
were also noted that the imaginary line to be drawn should not cut across
any river, creek, backwater, estuary,sand beach or mangroves. The
recommendations were made and there were two significant aspects:
i. The shortest distance from the high tide line to existing authorised
building of the adjoining plot (Choice Garden Apartments), being
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13.5 mtrs., the imaginary line was drawn parallel to the HTL
towards seaward side of the existing authorised building.
ii. DLF should have obtained CRZ clearance from KCZMA/
appellant before starting the construction, which was a
procedural violation.
8. In a nutshell while all aspects including the narrow canal was
found not to be an impediment, there was a violation of lack of prior
approval.
9. The aforesaid report of the sub-committee was examined and
minutes drawn on 31.8.2010. The salient aspect recorded in these
minutes is that the sub-committee examined the documents submitted
by DLF and also obtained clarifications in respect of SFI from the City
Town Planners. The case was examined in the light of recent
amendments of the MoEF with regard to CRZ-II region and a site visit
was also made on 19.7.2010. On a detailed examination, two aspects,
which once again emerge are: (i) Any portion protruding beyond the
imaginary line towards backwaters may be demolished (which has
apparently been done); (ii) In view of "procedural violations" found by
the sub-committee, a penalty for the same should be imposed.
10. The matter somehow did not end at this since the CESS is
stated to have visited the site again in June, 2011 and submitted a report
in September, 2011. This was in a sense the beginning of some further
adverse observations for DLF. It was now opined that apparently land
reclamation was carried out by DLF from 2009 onwards which had
caused the shifting of the backwater's banks by five metres. A major
part of the area, which was reclaimed was found to be part of low lying
areas such as filtration ponds/paddy fields and lastly the lay out building
complex needed to be superimposed on the local level CRZ map to get
the exact distance from HTL.
11. The Revenue Divisional Officer, Fort Kochi on 21.11.2011
issued a provisional stock memo to DLF to hold back construction on
the project land. There was an allegation made by the village officer
that about 50 cents of the Chilavannur river had been illegally reclaimed,
which the RDO on 17.12.2011 reported to the Cochin Corporation.
12. The trigger for this letter was stated to be a complaint received
from one Mr. Antony A.V. of Chilavannur, Kochi pursuant whereto a
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UNIVERSAL LTD. [SANJAY KISHAN KAUL, J.]
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team of experts from KCZMA/appellant had visited the site. Mr. Antony
is the original petitioner in the petition from which the present proceedings
arise. The site was visited on 9.11.2012 by CESS on intimation by
KCZMA/appellant and a report was submitted seeking to cast certain
question marks over its own earlier reports. Thus issues, such as the
status of the plot prior to 2009 having not been considered while delineating
the HTL, reclamation/modification of the backwater site, area being
part of water body were all sought to be raised. This was followed by a
petition filed on 15.11.2012 by Mr. Antony, being Writ Petition No.27248/
2012, seeking to interdict DLF from effecting any further construction
and to direct Cochin Corporation to implement the various directions of
KCZMA/appellant. The said Mr. Antony approached the Court alleging
to be living in the vicinity of the area and being affected by the
construction. Interestingly, why he chose to remain silent when the vast
area of construction was coming up right next to his property, is a mystery.
So is it a mystery, why DLF was singled out while no mention was made
of the whole area which was highly constructed as noticed in the reports.
The learned single Judge granted interim orders on 4.12.2012 against
progress of the project. KCZMA/appellant also became active at that
stage, asking DLF to submit a CRZ map of the project site with
construction superimposed on it and addressed to the MoEF a letter
dated 29.12.2012 for necessary action alleging that there was a land
reclamation by DLF. The CEAC in its 124th meeting held on 13/14.5.2013
decided to consider the environment clearance and noted certain violations
by DLF. However, since the SEIAA was set up in the meantime vide
Notification dated 19.12.2011, file of the project was transferred to it.
On 31.10.2013, the project was cleared by the SEIAA qua environment
clearance but it also decided to issue a show cause notice to DLF as to
why violation proceedings should not be initiated against it before issuance
of EC. Finally on 11.12.2013, SEIAA issued an integrated CRZ-cumenvironment clearance dated 11.12.2013 to the project subject to the
outcome of the writ proceedings pending before the learned single Judge
of the Kerala High Court. We may note here itself that one of the
aspects pointed out by DLF is that this clearance has not been challenged
in any proceedings nor were the writ proceedings amended to challenge
the same.
13. It is the case of the KCZMA/appellant that there were
complaints preferred by other persons with regard to the project of DLF
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and thus, in its meeting held on 17.2.2014 it was decided to constitute a
three member committee to inquire into the CRZ status of the project.
Apparently on 30.6.2014, the Chief Secretary submitted a report to the
Chief Minister reporting certain violations and a three member committee
report was available on 21.7.2014 alleging illegal reclamation of the land
and other violations. CESS also sought to change its course on 11.8.2014
alleging that there was a natural stream canal from the CRZ map submitted
to the MoEF for CRZ clearance and that some two photographs had
been replaced. The challenge laid to the report by DLF by way of writ
petition No.18483/2014 was disposed of on 19.8.2014 observing that the
report of the Chief Secretary dated 30.6.2014 could only be treated as a
piece of information.
14. The learned single Judge rendered his verdict on 8.12.2014
finding practically everything against DLF and categorised the whole
construction as illegal and in violation of law, particularly the CRZ
notification, and was thus not capable of being regularised. The illegal
structure was directed to be demolished. This order was assailed in writ
appeal No.1987/2014 by DLF. A separate writ petition was also filed,
being writ petition No.20555/2015, challenging the report dated 21.7.2014
by the three member committee appointed by the KCZMA/appellant.
The construction being complete and the flat buyers interest being
involved, these apartment buyers also filed writ petition Nos.2810/2015
and 3375/2015 praying for issuance of occupancy certificates.
15. The Division Bench ultimately by the impugned order while
broadly upholding the findings of the learned single Judge and setting
aside the order of demolition, directed regularisation subject to fine/
compensation amount of Rs.1 crore. This amount was to be deposited
before the District Collector, Ernakulam to be kept in a separate account
for being used exclusively for building up the environment, maintaining
ecological balance in the area situated on the eastern side of the
Chilavannur river, with a further direction to the District Collector to
submit periodic reports before the Court as to the utilisation of the amount
for the activities undertaken, in every six months. The writ petitions
filed by the prospective buyers were dismissed but without prejudice to
get the occupancy certificates for the building from the local authority
subject to the satisfaction of the costs. Writ petition No.20555/2015
was also dismissed.
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
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Stand of KCZMA/Appellant
16. The KCZMA/appellant are before us by appeal with Mr.
Shyam Divan, learned Senior Advocate seeking to vehemently canvas
that the various violations required the building to be demolished or in the
alternative, the fine substantially enhanced. He took us meticulously
through the development in the case as discussed above with each of
the events to canvas the violations which have taken place. On the
Court query about the silence of this important authority for such a long
period of time, the only answer available was that it did not have an
enforcement mechanism and is dependent on the Corporation for the
same. That, in our view, could hardly be an answer for such inaction if
there were violations. Enforcement is different from detection of
violations. There can hardly be any doubt about the bounden duty of this
authority to play a crucial role in preserving the environment in the coastal
area and it cannot wash its hands off by giving an explanation for inaction
as the alleged absence of an enforcement force. Had this authority kept
an eye open right from the beginning and played the role which it was
required to play, the situation which has come to pass would not have so
occurred and the identification of the violations, if any, would have been
made at the threshold stage itself. This did not happen here.
17. The reliance by the learned counsel has been on the subsequent
report, after the horses had bolted from the stable, to allege violations
from the beginning. The case, which was sought to be put up and
canvassed, was that no reclamation was permissible since 1991, but
land was actually reclaimed in 2005-06 and 2009-11. The aspects pointed
out in the subsequent reports including of the natural stream, as to how
the HTL measuring norms were violated in coming to conclusions, were
pointed out.
18. One of the main bedrocks of DLF, of having obtained the
integrated environment/CRZ clearance granted by SEIAA on 11.12.2013
was not denied but it was sought to be contended that the clearances
ought to have been obtained prior to the commencement of construction
which would at the relevant stage have been granted by the MoEF. In
any case SEIAA ought to have based its decisions on the recommendations
of the SEAC, which was not done. The SEAC had only considered the
environment clearance and not the CRZ clearance for the project. That
file ought not to have been transferred to SEIAA by the MoEF.
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19. Learned counsel also sought to contend that insofar as CRZ
status of the project land and its implications are concerned, the project
area in question included backwater and pokkali fields (filtration ponds)
by referring to various documents, which also show that land reclamation
was undertaken at the project site from 2005 onwards, which was a
prohibited activity. It was also submitted that the imaginary line to be
drawn was cutting across a natural backwater canal and not a manmade
drainage canal as alleged by DLF.
20. An issue was also sought to be raised about the FSI and FAR
status of the project as the same had been granted of 1.99 while the
Town and Country Plan Regulation only provided for 1.5.
21. In the written synopsis filed, it has been stated that some
action has been taken against some erring officials of Cochin Corporation
and the former Chairman of the KCZMA/appellant, and vigilance cases
are pending. It is admitted that a vigilance case is pending against the
Chief Secretary who addressed the communication dated 10.12.2014,
though not in respect of the project in question.
22. In order to establish that the action was not restricted to the
project in question, actions taken against other violators also sought to
be set up.
23. KCZMA/appellant sub-committee report of 31.8.2010 giving
in principle approval/recommendation to the project and recommending
imposition of fine is stated to be based on CESS report of May, 2005,
which was based on HTL, which was subsequently found on
superimposition, to involve land reclamation and resulted in a three
member committee report dated 21.7.2014.
24. Learned senior counsel also referred to a catena of judgments
to advance the proposition that in the 'no development zone' there could
not be permissions granted and that this Court has frowned upon the
practice of regularisation of unauthorised construction where environment
issues are involved.
Stand of the Cochin Municipal Corporation:
25. The Corporation has largely confined itself to the issue of
FAR sanction of 1.99. It is stated that the maximum FAR of the
Corporation of Cochin is 2.5 as clarified by MoEF. In the Kerala Building
Rules, 1999, the maximum FAR of 1.5 was extended to 2.5 FAR, which
SECY., KERALA STATE COASTAL MNGMT. AUTH. v. DLF
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continued till 22.2.2001 when Rule 31 was amended and maximum FAR
was increased to 3.00 extendable on payment of additional fee to 4.00.
26. The building permit in question was issued on 22.10.2007,
when the maximum FAR for central city of Kochi was reduced to 2. It
was in these circumstances that the FAR of 1.99 was made available.
Stand of the State of Kerala:
27. The State of Kerala has more or less supported the stand of
KCZMA but in the course of arguments it does appear that one aspect
which had really troubled it was the directions whereby the Collector
was sought to be made responsible for the management of Rs.1 crore
fine to be deposited as also the feasibility of utilising the same.
Stand of the Ministry of Environment and Forests:
28. The Ministry of Environment and Forests has indulged in a
complete flip-flop-flip in its affidavit without even explaining the reasons
for the same. The original affidavit was filed before the High Court on
19.5.2016 by one Dr. S.K. Susarla, Advisor with the Ministry. The
affidavit records that the Ministry was made a party to the proceedings
by the orders of the Court in the writ proceedings. The affidavit states
that based on the recommendations of the KCZMA, SEIAA, Kerala, it
was found that the project came under category 'B' and the project
proponents adhered to the conditions laid down and the construction is in
order. The relevant paras 19 & 20 are reproduced hereinbelow:
"19. That the project proponents have adhered to the conditions
laid down by the SEIAA and have not violated any of the
provisions.
20. That the said constructions are technically as per the provisions
of the CRZ Notifications 1991 and EIA Notifications 2006."
29. In the present proceedings also an affidavit dated 6.11.2017 is
available, which affirms that SEIAA, Kerala was in place in 2013 and
the project was a category 'B' project as per EIA notification of 2006,
the appraisal was to be done at the State level by the SEIAA. The
averments in para 17 are as under:
"17. It is submitted that SEIAAs/SEACs comprises of members
who are well qualified and have requisite expertise in various
sectors to examine, appraise the projects and recommend them
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for grant of Environmental Clearance imposing all suitable
environmental conditions to ensure sustainable environmental
management. The consideration of such projects at SEIAA/SEAC
level is to decentralise the powers confined to the Union
Government and to streamline and expedite the process of grant
of Environmental Clearance to building construction projects in
view of the growing demand of housing to all."
30. On the conclusion of the hearing, when crystallised written
synopsis had to be filed, an affidavit is sought to be slipped in by one Mr.
Ritesh Kumar Singh, Joint Secretary of the MoEF, stating that this affidavit
is in "continuation" of the earlier affidavit dated 6.11.2017 filed on
7.11.2017. For the first time, it is sought to be now pleaded that CRZ
Notification, 1991, CRZ Notification, 2011 and EIA Notification, 2006
have been violated and that prior clearance under the Notifications before
the commencement of construction activity was mandatory. It is also
sought to be alleged that reclaimed water bodies and land falling under
CRZ for housing projects is prohibited under CRZ Notification. The
post construction environment clearance is stated to have been granted
to the project by SEIAA without appraisal and recommendations of SEAC
and in the absence of approval of KCZMA. This affidavit runs into 31
paragraphs with annexures.
31. We fail to appreciate the contradictory stands of the authority
and the endeavour to set up a different case after the conclusion of the
hearing. Such conduct is unacceptable.
DLF's stand:
32. DLF has sought to emphasise that while an entrepreneur is
obliged to obtain all the requisite permissions, there is also a corresponding
obligation on the Regulatory Authorities to facilitate informed decisions
and compliances by the entrepreneur. DLF is stated to have obtained all
the requisite permissions for construction of the site from various
authorities including the Municipal Authorities. The issue pertains only
to the environment clearance and the CRZ on which aspects there have
been varying stands by different authorities and also changing stands of
the same authority.
33. The allegation of reclamation of land in 2005-2006 and 20092011 is strongly rebutted. It is pointed out that since there are registered
sale deed documents of land, assuming without admitting, that there is
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any reclamation, DLF had no role to play in the same as the transactions
took place in 2006. The Revenue Authority would certainly know what
is the nature of the area, i.e., whether it is land or not. Linked to this
issue, it is pointed out, that the Coastal Regulation Zone Land Use Map
No.34A prepared in 1996, which had been received by DLF under RTI
directly from CESS clearly mentions the nature of the property. The
filtrations ponds are marked as 'FP'. There is no such FP marked in the
area where DLF has constructed. The finding by the Court below is,
thus, assailed as contrary to record.
34. The aforesaid fact is sought to be buttressed by a reference
to a recital in the sale deeds where the district, sub-districts, taluk, village,
kara, firka, tenure and survey numbers are all mentioned. Thus, the land
certainly existed at the time of purchase. Not only that the sale deed
dated 20.10.2006 mentions the boundary of the land with building Nos.CC
29/288 in Item No.7 and 29/201 in item No.9, thereby suggesting that a
part of the land had housed two buildings.
35. Insofar as the Google maps images of February, 2005 and
December, 2005 are concerned, it is sought to be denied that the dark
area in the images is a water body as is sought to be made out by the
KCZMA. In this behalf a reference has been made to the Google map
of September, 2002 not suggesting any water body. The report of the
Institute of Remote Sensing, where a closer study of Google map of
February, 2005, through the process of separate enlargement would show
that the embankment is well protected without any change that there
was a large massof stagnant water in the property, which has shallow
depth as vegetation below the water, could easily be noticed.