IMPORTANT POINTS
Distinction between ‘enforcement’ and ‘detection’ of violations.
A party cannot be allowed to take contradictory and changing stands.
Compliance of environment law, rules and regulations is mandatory. It is no answer to say that the authority does not have an enforcement mechanism and thus, cannot act.
Lackadaisical attitude of authorities deprecated.
clause 8(3) of notification of 2006 should imply a prior clearance.

Headnote:(a) Environment law – KCZMA/appellant alleging CRZ violations by respondent – Trying to justify its inaction by absence of enforcement mechanism for which it has to depend on the Corporation – Distinction between ‘enforcement’ and ‘detection’ of violations – Justification not acceptable. (Para 16)
       (b) Administration of justice – Judicial discipline – Contradictory and changing stands taken by a party – Not acceptable. (Para 31)
       (c) Administrative law – Compliance of environment law, rules and regulations – Mandatory – It is no answer to say that the authority does not have an enforcement mechanism and thus, cannot act. (Para 44)
       (2016) 10 SCC 701; (2013) 5 SCC 257; (2004) 3 SCC 445 – Relied upon
       (d) Environment law – EIA Notification 2006 – Clause 8(3) – Deemed environment clearance – Respondent applying for environment clearance on 27.11.2007 – Authorities sleeping over – Clearance granted in 2013 – Respondent assuming deemed environment clearance – Lackadaisical attitude of authorities – Not appreciated. (Para 56)
       (e) Environmental law – Clearance – Respondent required to obtain prior approval – Not doing so – Applying therefor after starting construction – Continuing with construction taking advantage of deeming clearance clause 8(3) of Notification of 2006 – Held, clause 8(3) should imply a prior clearance – Cost imposed by High Court treated as fine. (Para 65)
       Facts of the case:
       Respondent No.1 purchased nearly 5.12 acres of property 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.
       Respondent No.1 obtained a building permit for the project in question issued by the Corporation of Cochin on 22.10.2007. 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 applied for environment clearance to the Ministry of Environment and Forests on 27.11.2007.
       The project of DLF was examined by the Central Expert Appraisal Committee and was approved as a “Silver Grading” project.
       DLF was required to obtain the CRZ status report from the Centre for Earth Science Studies, Thiruvanathapuram. An application was 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.
       The KCZMA/appellant issued a letter dated 21.1.2010 to DLF, seeking explanation for having started construction without obtaining the necessary permissions/approval/ clearance from KCZMA/appellant.
       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 the learned single Judge of the Kerala High Court.
       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.
       The Division Bench 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. 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.
       Finding of the Court:
       Lackadaisical attitude of authorities deprecated.
       Result: Appeals disposed of.

JUDGMENT

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 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 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 Reject

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2018 Supreme(SC) 12

Cases Referred (3)