The Secretary, Kerala State … vs Dlf Universal Limited (Formerly … on 10 January, 2018

                                                                                REPORTABLE


                                             IN THE SUPREME COURT OF INDIA
                                                 CIVIL APPELLATE JURISDICTION
                                               CIVIL APPEAL Nos.117-120 of 2018
                                          [Arising from SLP (Civil) Nos.6929-6932/2017]


                                THE SECRETARY,
                                KERALA STATE COASTAL
                                MANAGEMENT AUTHORITY                            ….Appellant


                                                              versus


                                DLF UNIVERSAL LIMITED
                                (Formerly known as Adelie Builders and
                                Developers Pvt. Ltd.)  ORS.                    ….Respondents


                                                               With

                                                  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



Signature Not Verified

Digitally signed by DEEPAK



                                                         JUDGMENT

MANSUKHANI
Date: 2018.01.10 17:01:49 IST
Reason: SIGNER CARD OF
MR. DEEPAK MANSUKAHNI
IS BEING USED BY MR. O.P.

SHARMA

Page 1 of 39
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
Page 2 of 39
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

Page 3 of 39
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

Page 4 of 39
‘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

Page 5 of 39
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

Page 6 of 39
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 40 th 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

Page 7 of 39
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

Page 8 of 39
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

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

Page 9 of 39
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

Page 10 of 39
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

Page 11 of 39
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

Page 12 of 39
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.

Page 13 of 39

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

Page 14 of 39
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

Page 15 of 39
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

Page 16 of 39
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
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

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

Page 21 of 39
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 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

Page 22 of 39
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

unexplained.

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.

Conclusion:

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

KCZMA/appellant.

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 Shetye 1, 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

under:

“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 Goa 4, 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 63 rd 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

appellant.

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

permitted.

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.

……….….….…………………….J.

(ROHINTON FALI NARIMAN)

………..…………………………J.

(SANJAY KISHAN KAUL)
New Delhi.

January 10, 2018.

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Article source: Supreme Court

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