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Monday, January 22, 2018

THE SECRETARY, KERALA STATE COASTAL MANAGEMENT AUTHORITY ….Appellant versus DLF UNIVERSAL LIMITED (Formerly known as Adelie Builders and Developers Pvt. Ltd.) & ORS. ….Respondents - 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.- In conclusion we set aside the findings of the impugned order 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. We also feel it 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. The same may be done within a period three months from the receipt of the copy of the order.

CIVIL APPEAL Nos.117-120 of 2018
 [Arising from SLP (Civil) Nos.6929-6932/2017]
(Formerly known as Adelie Builders and
Developers Pvt. Ltd.) & ORS. ….Respondents
CIVIL APPEAL No.121 of 2018
@SLP(C) No.6861/2017
CIVIL APPEAL No.122 of 2018
 @SLP(C) No.7306/2017
CIVIL APPEAL No.123 of 2018
 @ SLP(C) No.9929/2017
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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
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from different vendors in the year 2006 envisaging a multi-storey
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. The builders DLF Universal Limited (formerly known as
‘Adelie Builders & Developers Private Limited’) (hereinafter referred
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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
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‘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.
xxxx xxxx xxxx xxxx
(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.”
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
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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
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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
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
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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 multi-storey 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
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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
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
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
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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
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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 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
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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-cum-environment clearance dated 11.12.2013 to the
project subject to the outcome of the writ proceedings pending before
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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 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.
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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
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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.
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
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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
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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.
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.
Page 17 of 39
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.
Page 18 of 39
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 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:
Page 19 of 39
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
20. That the said constructions are technically as per the
provisions of the CRZ Notifications 1991 and EIA Notifications
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
Page 20 of 39
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 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
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of approval of KCZMA. This affidavit runs into 31 paragraphs with
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 2009-2011 is
strongly rebutted. It is pointed out that since there are registered sale
deed documents of land, assuming without admitting, that there is any
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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.
Page 23 of 39
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.
This is not stated to have any permanent link with the back water of
the Chillavannur canal. The Google map of 26.12.2005 was also
enlarged by the Institute of Remote Sensing and the entire
Chillavannur lake is seen to have green patches of Colocasia trees
surviving in low salinity. The property is stated to have lush and thick
vegetation and coconut trees in the middle, western, and southern side
of the property and the Google map clearly distinguishes the geo
morphology of the land which is totally different from the
Chillavannur canal and confirms the well marked boundary line with
the water body in the Chillavannur canal.
36. The December, 2012 map is stated to show thick vegetation with no
mark of water body and the coastal line abutting Chillavannur canal is
Page 24 of 39
well defined and marked. It is also pointed out that the CESS in its
report of May, 2009 published the coastal regulation zone status
report for an apartment complex as Vytilla, Cochi and the photograph
of the front page itself shows that the land in question before the
construction in May, 2009 next to Choice Garden is full of coconut
trees thereby suggesting that in May, 2009, it was clearly not a water
body. Such coconut trees could not have come up overnight as they
have a gestation period of 10-15 years.
37. The development arising from the successive CESS report is sought to
be analysed and it is alleged that Mr. K.V. Thomas was a party to
these reports. The reports were with KCZMA and, thus, there could
not be any issue of replacement of photographs. The photograph on
the front cover of the report also shows the coconut trees on the
property. The CESS report prepared by the same Mr. Thomas and
others in 2009 marks the drain in red colour and describes it as
inter-tidal zone falling under CRZ-I(ii). In the 2010 report to which
Mr. Joseph is a party while referring to the HTL, the canal is referred
to as a drainage canal and, thus, the requirement of imaginary line not
to cut across the water body would not be invoked. In another report
Page 25 of 39
in January, 2011, Mr. Thomas gave recommendations by naming
various projects, which had committed CRZ violations on the banks
of Chillavannur lake, which had committed violations by either
constructing on a reclaimed filtration pond or backwater side of
authorised buildings and respondent No.1 project was not named in
the same. Thus, right till February, 2011 at least, it is submitted, that
in the opinion of the KCZMA/appellant, DLF was stated to be in
compliance of all statutory provisions.
38. DLF draws strength from the fact that only part of the area was found
to be in CRZ-II, municipal authorities granted approvals and that no
statutory provisions in 1991 Notification or of September, 2006, made
prior CRZ approval before commencement of construction
mandatory. Once KCZMA itself recommended the proposal to MoEF,
it was submitted by respondent No.1 that there was no impediment in
the way of proceeding further with the project and there was really no
occasion for the CESS to revisit the issue.
39. It has been sought to be emphasised by Mr. Kapil Sibal, learned senior
counsel on behalf of DLF that no explanation was sought from DLF
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in respect of the observations of September, 2011. The 2012 report
was also never put to the DLF. Why these aspects were not so put is
40. Learned senior counsel sought to emphasise that the churning and the
rigmarole ultimately did produce a clearance of the project at least on
11.12.2013 and it was only after construction was complete, the
different aspects were triggered off at the behest of Mr. Antony, who
had seen the whole project develop near his property as alleged
without raising a finger on the issue over a number years. The FSI
position stands explained by the Corporation. Lastly, however, it was
conceded that though the fine was uncalled for, DLF has not sought
overturning of the fine as it did not file an appeal against the
impugned order.
41. We commenced this order pointing out the sleeping role of the
authorities which developed into contradictory claims by different
authorities over factual issues and finally even by the same authority,
like MoEF taking contradictory stands, even trying to slip in a further
additional stand after conclusion of hearing. It is a matter of concern
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to us that authorities have not performed their task with promptitude,
not realising the importance of the role they play including
42. We would like to deal with this matter on two planes – one is the
general plane; and the other is in the given facts of the case.
43. It is trite to say that the importance of environment and ecological
balance requires the enforcement of various Regulations, Rules and
enactments to be strictly followed. Specialised bodies like the
KCZMA/appellant have been created to deal with the CRZ
Regulations for greater sensitivity. It is, thus, no answer to say that it
does not have an enforcement mechanism and thus, cannot act.
44. The case law, which Mr. Shyam Divan took us through itself brings
forth the importance of compliances.
45. In Anil Hoble v. Kashinath Jairam Shetye1
, it was held that any
illegal structure falling within the ‘No Development Zone’ (200 mtrs.
from the HTL) in a CRZ III area was directed to be demolished and
even the permission granted by the Coastal Zone Management
Authority was of no avail. Similarly, the practice of regularising
1 (2016) 10 SCC 701
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unauthorised constructions effected by erring buildings in violation of
law has not found approval from this Court and humanitarian and
equitable grounds found no place in the same. In Union Territory of
Lakshadweep v. Seashells Beach Resort2
, it has been observed as
“30. The High Court’s order proceeds entirely onhumanitarian and
equitable considerations, in the process neglecting equally, if
notmore,important questions that have an impact on the future
development and management of theLakshadweep Islands. We are
not, therefore, satisfied with the manner in which the High
Courthas proceeded in the matter.
31. The High Court obviously failed to appreciate that
equitableconsiderations were wholly misplaced in a situation
where the very erection of the building to beused as a resort
violated the CRZ requirements or the conditions of land use
diversion. No onecould in the teeth of those requirements claim
equity or present the administration with a faitaccompli. The
resort could not be commissioned under a judicial order in
disregard of seriousobjections that were raised by the
Administration, which objections had to be answered beforeany
direction could issue from a writ Court.”
46. To the aforesaid extent are also the observations in Esha Ekta
Apartments Cooperative Housing Society v. Municipal Corporation
of Mumbai3
47. In Piedade Filomena Gonsalves v. State of Goa4
, it has been
2 (2012) 6 SCC 136
3 (2013) 5 SCC 257
4 (2004) 3 SCC 445
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observed as under:
“5. It is pertinent to note that during the pendency of the writ
petition, the appellant had moved two applications, one of which
is dated 11.7.1995, for the purpose of regularisation of the
construction in question. The Goa State Coastal Committee for
Environment, the then competent body constituted a
sub-committee which inspected the site and found that the entire
construction raised by the appellant fell within 200 metres of HTL
and the construction had been carried out on existing sand dunes.
The Goa State Coastal Committee for Environment, in its meeting
dated 20.10.1995, took a decision inter alia holding that the entire
construction put up by the appellant was in violation of the
Coastal Regulation Zone Notification.
6. The Coastal Regulation Zone Notifications have been issued in
the interest of protecting environment and ecology in the coastal
area. Construction raised in violation of such regulations cannot
be lightly condoned. We do not think that the appellant is entitled
to any relief. No fault can be found with the view taken by the
High Court in its impugned judgment.”
48. We are of the view that if the allegation of large scale violations by
DLF were to be correct there would be no alternative but to bring
down the structure. The moot point, however, remains is as to what is
the correct analysis of the factual position in the case.
49. We would also like to emphasise that 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
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a jeopardy. This is what appears to have happened in the present case.
50. We also make it 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.
51. In the aforesaid conspectus, if the present project is seen, there is
really no question mark over the various permissions to 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
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permitted so that there is no doubt about the legality of the FAR
granted. We may not delve further on this aspect as the crucial
question is relating to the environment clearance and the clearance
required for the CRZ area.
52. The possibility of some area being CRZ-I area had given rise to the
observations by the CEAC in its 63rd meeting on 16-18.8.2008 for the
project to take CRZ clearance as well while granting environmental
clearance. Thus, the environmental clearance was also granted and
the aspect which remained was relating to the CRZ area.
53. There are stated to be notified authorities numbering seven at that
stage, who would prepare reports for analysis by the
KCZMA/appellant and one such notified agency was CESS. The
CESS did give a report in May, 2009 categorically stating that there
was no CRZ-I (i) land in project area or close to it but it was situated
in CRZ-II. The well developed, constructed area in the large expanse
around the property in question, also stood enumerated in that report.
54. 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
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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.
55. As to why after the initial report of CESS of May, 2009, should
CESS,after two years be again asked to visit at the request of the
appellant is not really understood. In the meantime most of the
construction was apparently done. The complaints made by Mr.
Antony started playing a role from 2012, a person who, also for
reasons best known to him, decided to knock at the doors of the
authority and the Court when most of the project was over.
Interestingly CESS, once again, visited based on recommendation of
the appellant in November, 2012 at the same time when Mr. Antony
filed the petition.
56. In our view it is undoubtedly the specialised authorities who have to
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carry out the task, but with promptitude. Their lackadaisical attitude
has permitted DLF to raise the issue of a deemed environment
clearance by virtue of Clause 8(3) of the EIA Notification of 2006,
which has already been extracted hereinabove. 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.
57. Insofar as the nature of the area is concerned, we have given due
weightage 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 with us. The reason is that the alleged
violations have not emerged with clarity.
58. The Coastal Regulation Zone land use map 34A produced before us
by DLF and as explained by Mr. Kapil Sibal, learned senior counsel
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.
59. In the course of arguments, Mr. Shyam Divan, learned senior counsel
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has sought to rely upon the Google images of February, 2005 and
December, 2005 to suggest that there has been obviously large scale
reclamation. On behalf of DLF, Mr. Sibal has been able to throw
grave doubts over reliance of such Google images for the purposes of
coming to the conclusion that the dark area in the image is a water
body apart from the fact that in the sale deed dated 20.10.2006 it is
not so mentioned as per the revenue record. 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
60. As noticed above, if the appellant had acted with promptitude at the
relevant time, we are sure that the correct picture would have been
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available whether for or against.
61. On behalf of CESS also there have been meanderings and
contradictions in the approach, even though Mr. K.V. Thomas was
party to all of them. In the context of the drain, in the 2009 report it is
clearly stated to be an inter tidal zone falling under CRZ 1(ii). The
report has been prepared after inspection. The HTL from the Choice
Garden building was found cutting the canal, which was labelled as a
drainage canal and thus, was not cutting a water body. It is not
understood how the contradictions arose subsequently in the 2011 and
2012 reports.
62. The approach of MoEF also appears to be strange and a complete
contradiction between what was stated before the High Court, before
us three weeks before the conclusion of hearing and then the
endeavour to slip in an additional affidavit post conclusion of hearing.
63. The CEAC in 2008 itself had suggested that the CRZ Committee may
examine the proposal which was so done. This was discussed with
the appellant and further requisite information was also sought. The
report from the CESS was obtained in May, 2009 and only a part of
the project area was found in CRZ II category. After going through
all the procedural requirements, the appellant made a recommendation
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on 31.8.2010 that the construction falls in CRZ II areas and the
narrow canal was not an impediment to the construction. The
appellant itself decided to recommend the proposal to the MoEF.
64. It is the own wisdom of the MoEF that with the establishment of
SEIAA the whole file should be forwarded to it and this was sought to
be justified on the basis of the experts available with SEIAA. What
weighs with us most is that post transfer of the file on 11.12.2013, the
proposal was cleared by SEIAA, being the final authority, and that has
never been withdrawn or cancelled or challenged. This clearance was
post a show cause notice seeking explanation from DLF and on
explanation being offered, was issued. Now for the authorities to say
otherwise or contradict themselves would not be fair to DLF and
would cause grave uncertainty if such an approach was to be
65. We are, thus, not in agreement with the findings of the Courts below
on the violations alleged against DLF 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 we have clarified that whatever be the manner in
which Clause 8(3) of Notification of 2006 is worded, it should imply
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henceforth a prior clearance and necessary clarifications should be
issued by the concerned authorities in a time bound manner to obviate
such situations to arise in the future. We feel that the direction
contained in the impugned order to deposit Rs.1 crore (stated to be
already deposited) can be treated as a fine for the said purpose.
66. We are also of the view that the operative directions against the
Collector of the State Government to monitor and do this task would
be non-workable and it is appropriate that this amount is transferred to
the KCZMA/appellant for purposes of better enforcement and
development of CRZ area.
67. In conclusion we set aside the findings of the impugned order 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. We also feel it 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.
The same may be done within a period three months from the receipt
of the copy of the order.
68. The appeals are disposed of in the aforesaid terms. The parties are
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left to bear their own costs.
New Delhi.
January 10, 2018.
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