THE SECRETARY, KERALA STATE COASTAL MANAGEMENT AUTHORITY versus DLF UNIVERSAL LIMITED (FORMERLY KNOWN AS ADELIE BUILDERS AND DEVELOPERS PVT. LTD.) & ORS. on 10 January 2018

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[2018] 1 S.C.R.

ATHE SECRETARY, KERALA STATE COASTAL MANAGEMENTAUTHORITY

v.

DLF UNIVERSAL LIMITED

B(FORMERLY KNOWN AS ADELIE BUILDERS ANDDEVELOPERS PVT. LTD.) & ORS.

(Civil Appeal Nos. 117-120 of 2018)

JANUARY 10, 2018

[R. F. NARIMAN AND SANJAY KISHAN KAUL, JJ.]C

Environmental Laws:

Environment clearance – Coastal Regulation Zone (CRZ)Notification – Violation of – Regularisation of illegal construction– On facts, construction of multi-storey residential complex on theDbank of Chilavannurkayal (back waters) in Kerela – Allegationthat the construction project completed in violation of CRZnotification – Single Judge of the High Court held that theconstruction was illegal, not capable of being regularized, thuspassed direction for its demolition – Division Bench of the HighCourt upholding the findings of the Single Judge, set aside the orderEof demolition and directed regularization on payment of Rs 1 croreas fine – On appeal, held: Authorities continue to do a flip-flop-flipputting the large investments at stake in a jeopardy – Specialisedauthorities were to carry out the task with promptitude but theirlackadaisical attitude permitted DLF to raise the issue of a deemedFenvironment clearance – Alleged violations have not emerged withclarity – Findings of the courts below on CRZ violations allegedagainst DLF set aside – Approach of MoEF also appears to bestrange and a complete contradiction between what was statedbefore the courts – Thus, the findings of the impugned order is setaside whereas the fine of Rs.1 crore sustained.G

Environment clearance for construction project – Applicationfor – Held: Need to have more single window clearance, so thatthere is less uncertainty and better enforcement.

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Disposing of the appeals, the Court

HELD: 1.1 The importance of environment and ecologicalbalance requires the enforcement of various Regulations, Rulesand enactments to be strictly followed. Specialised bodies likethe Kerela Coastal Zone Management Authority (KCZMA)-appellant have been created to deal with the Coastal RegulationZone(CRZ) Regulations for greater sensitivity. It is, thus, noanswer to say that it does not have an enforcement mechanismand thus, cannot act. [Para 43][164-E]

Anil Hoble v. Kashinath Jairam Shetye(2016) 10 SCC701; Union Territory of Lakshadweep v. Seashells BeachResort[2012] 5 SCR 1108 : (2012) 6 SCC 136; EshaEkta Apartments Cooperative Housing Society v.Municipal Corporation of Mumbai [2013] 4 SCR 478 :[2013] 5 SCC 357; Piedade Filomena Gonsalves v.State of Goa[2004] 2 SCR 1135 : (2004) 3 SCC 445 –referred to.

1.2 If the allegation of large scale violations by DLF wereto be correct there would be no alternative but to bring down thestructure. There has to be undoubtedly greater clarity on theprocesses and a better understanding between various authoritiesso that developers are not left in the lurch-violators have to bepunished but it cannot be that the authorities continue to do aflip-flop-flip putting the large investments at stake in a jeopardy.This is what appears to have happened in the instant case. [Paras48-49][166-B-D]

1.3 It is made clear that in the future, wherever permissionsare required to come and are to be obtained beforecommencement of construction, it would be no answer that activitycan be carried on without obtaining the permissions.Simultaneously, the permissions itself are envisaged in a timebound schedule and not through improvement of cases byauthorities running into years. Thus, from the inception itself,there should be clarity on what is permissible and what is not.[Para50][166-E]

1.4 In the said conspectus, if the present project is seen,there is really no question mark over the various permissions to A

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Acarry on construction having been obtained by DLF. The landwas purchased through sale deeds and the sale deeds specifiedthe nature of the area. It would, thus, be no answer to state thateven the Revenue authorities are oblivious to what is the natureof the land. DLF, thus, purchased the land legally and obtainedrequisite permissions including qua the FAR, which aspect standsBexplained by the Corporation as to why it is not 1.50 as allegedby KCZMA/appellant nor 2.5 as is alleged by DLF but in thegiven case was taken as 2 and that is why 1.99 FAR was permittedso that there is no doubt about the legality of the FAR granted.The environmental clearance was also granted and the aspectCwhich remained was relating to the CRZ area. The CESS did givea 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 expansearound the property also stood enumerated in that report.[ Paras51-53][166-F-G; 167-A-C]D

1.5 The fault of DLF was that it should have stayed its handtill CRZ permission had also been obtained but the fact remainsthat on account of delay in the same it was perceived as a deemedpermission case-rightly or wrongly. The construction in between was also stopped but the appellant itself decided to recommendEthe project proposal to MoEF on 20.3.2010 on the basis that thenarrow canal was a drainage canal. If there was any doubt aboutthe same, it should have been settled at that stage itself. Thesub-committee appointed by the appellant also categorically observed that the narrow canal was a drainage canal butFrecommended a fine being imposed for not obtaining priorapproval/clearance. Really speaking the matter should have endedwith that, with a quantification of the fine to be imposed. Theapproach of MoEF appears to be strange and a completecontradiction between what was stated before the High Court,before this Court before the conclusion of hearing and then theGendeavour to slip in an additional affidavit post conclusion ofhearing.[Paras 54, 62][167-C-E; 169-B-C]

1.6 It is undoubtedly the specialised authorities who haveto carry out the task, but with promptitude. Their lackadaisicalattitude has permitted DLF to raise the issue of a deemedH

environment clearance by virtue of Clause 8(3) of the EIANotification of 2006. While the environment clearance was appliedon 27.11.2007, the integrated clearance was granted on 11.12.2013after six years, while by 2012, the project stood completed.[Para56][167-G-H; 168-A]

1.7 Insofar as the nature of the area is concerned, dueweightage is given to the revenue records, which are reflectedin the sale deeds executed. Some of the aspects which haveweighed with the courts below do not find favour. The reason isthat the alleged violations have not emerged with clarity. [Para57][168-B]

1.8 The Coastal Regulation Zone land use map 34Aproduced shows that wherever filtration ponds existed they wereso recorded. In 1995-96 much prior to the year 2000 no suchfiltration ponds are recorded in the area constructed upon.Therefore, the findings to the contrary cannot be sustained. Therecould not have been a reclamation of the filtration pond by DLF.The Google images produced on behalf of DLF show that inSeptember, 2003 there was no suggestion of a water body. DLFhas also taken the assistance of a report of the Institute of RemoteSensing in respect of two Google images relied upon by theappellant to substantiate its case and explain that there was alarge mass of stagnant water in the property of shallow depthwith vegetation below the water visible. This water appears notto have any permanent link with the backwater of the Chillannavurcanal. The existence of the coconut trees is another aspect whichthrows doubt on the submissions made on behalf of the appellant.If the appellant had acted with promptitude at the relevant time,the correct picture would have been available whether for oragainst. [Paras 58-60][168-C-G]

1.9 The findings of the courts below on the violations allegedagainst DLF are not accepted except to the extent that there is aquestion mark on the issue of not having obtained prior clearanceand proceeding on the basis of a deemed clearance, which aspect,at least for the future it is clarified that whatever be the mannerin which Clause 8(3) of Notification of 2006 is worded, it shouldimply henceforth a prior clearance and necessary clarificationsshould be issued by the concerned authorities in a time bound A

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Amanner to obviate such situations to arise in the future. Thedirection contained in the impugned order to deposit Rs.1 crore(stated to be deposited) can be treated as a fine for the saidpurpose. The operative directions against the Collector of theState Government to monitor and do this task would be non-workable and it is appropriate that this amount is transferred toBthe KCZMA for purposes of better enforcement and developmentof CRZ area. [Paras 65-66][169-G-H; 170-A-B]

1.10 The findings of the impugned order is set aside whilesustaining the fine of Rs.1 crore with the direction for strictadherence to the norms in future and avoidance of suchCcontradictions by the authorities. It is appropriate that in view ofthe professed policy to have more single window clearance, themethodology of such processing of such applications should beendeavoured to be simplified so that there is less uncertaintyand better enforcement. [Para 67][170-C]

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 117-120 of 2018.

From the Judgment and Order dated 21.12.2016 of the High Courtof Kerala at Ernakulam in W. A. No. 1987 of 2014 and W. P. (C) Nos.F20555, 28102 and 33715 of 2015.

WITH

C. A. Nos. 121, 122 and 123 of 2018.

Shyam Divan, Pallav Shishodia, Kapil Sibal, Pinaki Mishra,GKrishnan Venugopal, Ranjit Kumar, Ajit Kr. Sinha, Sr. Advs., Vipin Nair,P. B. Suresh, Prithu Garg, Abhay Pratap Singh, Reji George, JohnMathew, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash, Mrs. BeenaPrakash, Vijay Shankar V. L., Manu Nair, Ishan Gaur, S. S. Shroff,Manik Sachdeva, Nikhil Rohatgi, Shashank Khurana, Saiby JoseKidangoor, Sajith P. Warier, P. S. Sudheer, Renjith B. Marar, Ms. LakshmiH

N. Kaimal, Vishnu Pazhanganat, Rajiv Nanda, Gurmeet Singh Makker,Sanjay Kumar Pathak, S. Wasim A. Qadri, Saeed Qadri, Advs. for theappearing parties.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. Leave granted.

2. The battle of environment protection against development is anever ending one and the present dispute primarily is an offshoot of sucha conflict. The dispute between the developers of a housing project andthe environment authorities is also one where different authorities havetaken variant stands. It is the say of the developer that they obtained allrequisite permissions and have proceeded with the project in pursuancethereof while the coastal management authority and the environmentauthority plead otherwise. From the perspective of the Kerala StateCoastal Management Authority, which is the main appellant before us, ithas been a saga of a sleeping authority – not having an afternoon siestabut a Kumbhakarna sleep albeit of almost four years. On being wokenup, it suddenly seeks to see various violations wanting to put the clockback. In this period things have been done and dusted and a huge projecthas taken shape, which is at the final stage.

3. Now coming to the facts of the case at hand, the project inquestion is of respondent No.1, which purchased nearly 5.12 acres ofproperty from different vendors in the year 2006 envisaging a multi-storey residential complex of about 185 units located on the easternbank 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 thesaid area, along with the adjoining panchayats is highly developed. A lotof low lying areas including tidal marshes and filtration ponds borderingthe backwaters are alleged to have been reclaimed for construction andother development activities by various third parties and the area closeto the site in question is well developed and built up.

4. Respondent No.1 obtained a building permit for the project inquestion issued by the Corporation of Cochin (hereinafter referred to asthe ‘Corporation’) on 22.10.2007 under the Kerala Building Rules, 1984.It is also not really disputed that the other linked permissions such asNOC from State Pollution Control Board, NOC from the Fire & RescueDepartment and height clearance from the Navy was also obtained.

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AThe builders DLF Universal Limited (formerly known as ‘Adelie Builders& Developers Private Limited’) (hereinafter referred to as ‘DLF’) appliedfor environment clearance to the Ministry of Environment and Forestson 27.11.2007. The intervening factor was a Notification dated 14.9.2006issued by the Ministry of Environment and Forests in furtherance of theenvironment protection in exercise of power conferred by sub-sectionB(1) and clause (v) of subsection (2) of Section 3 of the EnvironmentProtection Act, 1986 (hereinafter referred to as the ‘said Act’) readwith clause (d) of sub-rule (3) of Rule 5 of the Environment ProtectionRules, 1986. This Notification was in supersession of the earlierNotification of 27.1.1994. The Notification states that the process wasCfollowed duly and in accordance with the objective of the NationalEnvironment Policy as approved by the Union Cabinet on 18.5.2006,such process was being modified. All new projects required priorenvironmental clearance from the Central Government as applicable oras the case may be the State Environment Impact Assessment Authority

(for short ‘SEIAA’) duly constituted by the Central Government underDsub-section (3) of Section 3 of the said Act. The Notification also providedthat the SEIAA would base its decision on the recommendation of theState or Union Territory Level Expert Appraisal Committee ( for short‘SEAC’) as to be constituted following the Notification and in the absenceof the setting up of these authorities, a category provided would be treatedEas category ‘A’ project. Clause 8 dealt with the Grant or Rejection ofPrior Environmental Clearance (EC) and the relevant clauses of thesame are reproduced hereunder:

“8. Grant or Rejection of Prior Environmental Clearance(EC):F(i) The regulatory authority shall consider the recommendationsof the EAC or SEAC concerned and convey its decision to theapplicant within forty five days of the receipt of therecommendations of the Expert Appraisal Committee or StateLevel Expert Appraisal Committee concerned or in other wordsGwithin one hundred and five days of the receipt of the finalEnvironment Impact Assessment Report, and whereEnvironmental Impact Assessment is not required, within onehundred and five days of the receipt of the complete applicationwithin requisite documents, except as provided below.

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(iii) In the event that the decision of the regulatory authority is notcommunicated to the applicant within the period specified in sub-paragraphs (i) or (ii) above, as applicable, the applicant mayproceed as if the environment clearance sought for has beengranted or denied by the regulatory authority in terms of the finalrecommendations of the Expert Appraisal Committee or StateLevel Expert Appraisal Committee concerned.”

5. As we have been informed, these authorities have beenconstituted subsequently only on 19.12.2011 and, thus, logically in viewof what has been set out hereinabove, the project in question couldpossibly have been treated as a category ‘A’ project. The project ofDLF was examined by the Central Expert Appraisal Committee (forshort ‘CEAC’) in its 63[rd] meeting and was approved as a “Silver Grading”project. A suggestion was made by the CEAC that some of the projectarea falls under the Coastal Regulation Zone (‘CRZ’) and thus, the detailsof the project may be examined by the CRZ Committee of the Ministryand a separate clearance should be acquired under the CRZ project. Infurtherance of this recommendation DLF was required to obtain theCRZ status report from the Centre for Earth Science Studies (for short‘CESS’), Thiruvanathapuram, which is stated to be one of the sevenauthorised/identified agencies. An application is stated to have beenmade by DLF on 23.9.2008 to CESS, which in turn made a positiverecommendation in May, 2009, stating that the project land was situatedat CRZ II and there was no area in CRZ (I and i) in the project area orclose to it. It may be noted at this stage that there have been somesubsequent reports by CESS in September, 2011 and a communicationdated 11.8.2014 but the project was more or less over even by the firstdate or was sufficiently advanced. The purport of the subsequentdevelopments will be considered hereinafter but suffice to say that thefirst report sought to point out reclamation of backwater by DLF after2009, earlier reclamation of filtration ponds and paddy fields and shiftingof high tide lines. The communication dated 11.8.2014 pertained toalleged replacement of some photographs from the CESS report of May,2009 and referred to a stream/natural canal at site that had been mappedby the CESS.

6. It appears that DLF, however, did not wait for the environmentclearance and the construction activity went on at rapid pace at siteostensibly on a perceived deemed clearance since there was no A

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Acommunication during this period of time. This is apparent from a visitreport dated 29.10.2009 of Kerala Coastal Zone Management Authority(for short ‘KCZMA’)/appellant. This resulted in the KCZMA/appellantissuing a letter dated 21.1.2010, seeking explanation for having startedconstruction without obtaining the necessary permissions/approval/clearance from KCZMA/appellant. However, subsequently on 20.3.2010Bin its 40[th] meeting the KCZMA/appellant, post discussion of the siteinspection 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 anddecided to recommend the project proposal to MoEF. TheCcontention of the Subcommittee that, the narrow canal encounteredin the imaginary line drawn parallel to the High Tide Line from theChoice Garden building is only a drainage canal as has been agreedby the meeting, since the narrow drainage canal need not beconsidered as a canal. The Authority also decided to collect a fullDset of modified documents as per provisions of CRZ Notification,including existing FSI & FAR as on 19[th] February, 1991.”

7. A sub-committee appointed by KCZMA/appellant visited thesite again and made certain recommendations dated 19.7.2010. A perusalof the report of the sub-committee states that the construction had alreadyEcommenced and the structure of a sizeable number of floors of a multi-storey residential project was nearing completion. This is stated to havecaused some impediment to the mandate to evaluate the proposed sitefor CRZ clearance. It, however, records that the site falls in CRZ IIcategory and does not have any CRZ I(i) areas, such as mangroves. InSurvey No.1019 Choice Garden Apartments existed which was, however,Fin existence prior to 19.2.1991. Insofar as the narrow canal wasconcerned it is noted that the same functioned as a municipal drain forwaste water drainage from urban conglomeration of the northern sideof the project site. The residential apartment construction NCR II wasfound to be permissible but the proposed construction has to be on theGlandward side of the existing road. The clarifications given by the MoEFwere also noted that the imaginary line to be drawn should not cut acrossany river, creek, backwater, estuary,sand beach or mangroves. Therecommendations were made and there were two significant aspects:

i. The shortest distance from the high tide line to existing authorisedHbuilding of the adjoining plot (Choice Garden Apartments), being

13.5 mtrs., the imaginary line was drawn parallel to the HTLtowards seaward side of the existing authorised building.

ii. DLF should have obtained CRZ clearance from KCZMA/appellant before starting the construction, which was aprocedural violation.

8. In a nutshell while all aspects including the narrow canal wasfound not to be an impediment, there was a violation of lack of priorapproval.

9. The aforesaid report of the sub-committee was examined andminutes drawn on 31.8.2010. The salient aspect recorded in theseminutes is that the sub-committee examined the documents submittedby DLF and also obtained clarifications in respect of SFI from the CityTown Planners. The case was examined in the light of recentamendments of the MoEF with regard to CRZ-II region and a site visitwas also made on 19.7.2010. On a detailed examination, two aspects,which once again emerge are: (i) Any portion protruding beyond theimaginary line towards backwaters may be demolished (which hasapparently been done); (ii) In view of “procedural violations” found bythe sub-committee, a penalty for the same should be imposed.

10. The matter somehow did not end at this since the CESS isstated to have visited the site again in June, 2011 and submitted a reportin September, 2011. This was in a sense the beginning of some furtheradverse observations for DLF. It was now opined that apparently landreclamation was carried out by DLF from 2009 onwards which hadcaused the shifting of the backwater’s banks by five metres. A majorpart of the area, which was reclaimed was found to be part of low lyingareas such as filtration ponds/paddy fields and lastly the lay out buildingcomplex needed to be superimposed on the local level CRZ map to getthe exact distance from HTL.

11. The Revenue Divisional Officer, Fort Kochi on 21.11.2011issued a provisional stock memo to DLF to hold back construction onthe project land. There was an allegation made by the village officerthat 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 receivedfrom one Mr. Antony A.V. of Chilavannur, Kochi pursuant whereto a A

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Ateam of experts from KCZMA/appellant had visited the site. Mr. Antonyis the original petitioner in the petition from which the present proceedingsarise. The site was visited on 9.11.2012 by CESS on intimation byKCZMA/appellant and a report was submitted seeking to cast certainquestion marks over its own earlier reports. Thus issues, such as thestatus of the plot prior to 2009 having not been considered while delineatingBthe HTL, reclamation/modification of the backwater site, area beingpart of water body were all sought to be raised. This was followed by apetition filed on 15.11.2012 by Mr. Antony, being Writ Petition No.27248/2012, seeking to interdict DLF from effecting any further constructionand to direct Cochin Corporation to implement the various directions ofCKCZMA/appellant. The said Mr. Antony approached the Court allegingto be living in the vicinity of the area and being affected by theconstruction. Interestingly, why he chose to remain silent when the vastarea 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.DThe learned single Judge granted interim orders on 4.12.2012 againstprogress of the project. KCZMA/appellant also became active at thatstage, asking DLF to submit a CRZ map of the project site withconstruction superimposed on it and addressed to the MoEF a letterdated 29.12.2012 for necessary action alleging that there was a landEreclamation by DLF. The CEAC in its 124[th] meeting held on 13/14.5.2013decided to consider the environment clearance and noted certain violationsby DLF. However, since the SEIAA was set up in the meantime videNotification dated 19.12.2011, file of the project was transferred to it.On 31.10.2013, the project was cleared by the SEIAA qua environmentclearance but it also decided to issue a show cause notice to DLF as toFwhy violation proceedings should not be initiated against it before issuanceof EC. Finally on 11.12.2013, SEIAA issued an integrated CRZ-cum-environment clearance dated 11.12.2013 to the project subject to theoutcome of the writ proceedings pending before the learned single Judgeof the Kerala High Court. We may note here itself that one of theGaspects pointed out by DLF is that this clearance has not been challengedin any proceedings nor were the writ proceedings amended to challengethe same.

13. It is the case of the KCZMA/appellant that there werecomplaints preferred by other persons with regard to the project of DLF

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and thus, in its meeting held on 17.2.2014 it was decided to constitute athree member committee to inquire into the CRZ status of the project.Apparently on 30.6.2014, the Chief Secretary submitted a report to theChief Minister reporting certain violations and a three member committeereport was available on 21.7.2014 alleging illegal reclamation of the landand other violations. CESS also sought to change its course on 11.8.2014alleging that there was a natural stream canal from the CRZ map submittedto the MoEF for CRZ clearance and that some two photographs hadbeen replaced. The challenge laid to the report by DLF by way of writpetition No.18483/2014 was disposed of on 19.8.2014 observing that thereport of the Chief Secretary dated 30.6.2014 could only be treated as apiece of information.

14. The learned single Judge rendered his verdict on 8.12.2014finding practically everything against DLF and categorised the wholeconstruction as illegal and in violation of law, particularly the CRZnotification, and was thus not capable of being regularised. The illegalstructure was directed to be demolished. This order was assailed in writappeal No.1987/2014 by DLF. A separate writ petition was also filed,being writ petition No.20555/2015, challenging the report dated 21.7.2014by the three member committee appointed by the KCZMA/appellant.The construction being complete and the flat buyers interest beinginvolved, these apartment buyers also filed writ petition Nos.2810/2015and 3375/2015 praying for issuance of occupancy certificates.

15. The Division Bench ultimately by the impugned order whilebroadly upholding the findings of the learned single Judge and settingaside the order of demolition, directed regularisation subject to fine/compensation amount of Rs.1 crore. This amount was to be depositedbefore the District Collector, Ernakulam to be kept in a separate accountfor being used exclusively for building up the environment, maintainingecological balance in the area situated on the eastern side of theChilavannur river, with a further direction to the District Collector tosubmit periodic reports before the Court as to the utilisation of the amountfor the activities undertaken, in every six months. The writ petitionsfiled by the prospective buyers were dismissed but without prejudice toget the occupancy certificates for the building from the local authoritysubject to the satisfaction of the costs. Writ petition No.20555/2015was also dismissed.

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AStand of KCZMA/Appellant

16. The KCZMA/appellant are before us by appeal with Mr.Shyam Divan, learned Senior Advocate seeking to vehemently canvasthat the various violations required the building to be demolished or in thealternative, the fine substantially enhanced. He took us meticulouslyBthrough the development in the case as discussed above with each ofthe events to canvas the violations which have taken place. On theCourt query about the silence of this important authority for such a longperiod of time, the only answer available was that it did not have anenforcement mechanism and is dependent on the Corporation for thesame. That, in our view, could hardly be an answer for such inaction ifCthere were violations. Enforcement is different from detection ofviolations. There can hardly be any doubt about the bounden duty of thisauthority to play a crucial role in preserving the environment in the coastalarea and it cannot wash its hands off by giving an explanation for inactionas the alleged absence of an enforcement force. Had this authority keptDan eye open right from the beginning and played the role which it wasrequired to play, the situation which has come to pass would not have sooccurred and the identification of the violations, if any, would have beenmade at the threshold stage itself. This did not happen here.

17. The reliance by the learned counsel has been on the subsequentEreport, after the horses had bolted from the stable, to allege violationsfrom the beginning. The case, which was sought to be put up andcanvassed, was that no reclamation was permissible since 1991, butland was actually reclaimed in 2005-06 and 2009-11. The aspects pointedout in the subsequent reports including of the natural stream, as to howthe HTL measuring norms were violated in coming to conclusions, wereFpointed out.

18. One of the main bedrocks of DLF, of having obtained theintegrated environment/CRZ clearance granted by SEIAA on 11.12.2013was not denied but it was sought to be contended that the clearancesought to have been obtained prior to the commencement of constructionGwhich would at the relevant stage have been granted by the MoEF. Inany case SEIAA ought to have based its decisions on the recommendationsof the SEAC, which was not done. The SEAC had only considered theenvironment clearance and not the CRZ clearance for the project. Thatfile ought not to have been transferred to SEIAA by the MoEF.

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19. Learned counsel also sought to contend that insofar as CRZstatus of the project land and its implications are concerned, the projectarea in question included backwater and pokkali fields (filtration ponds)by referring to various documents, which also show that land reclamationwas undertaken at the project site from 2005 onwards, which was aprohibited activity. It was also submitted that the imaginary line to bedrawn was cutting across a natural backwater canal and not a manmadedrainage canal as alleged by DLF.

20. An issue was also sought to be raised about the FSI and FARstatus of the project as the same had been granted of 1.99 while theTown and Country Plan Regulation only provided for 1.5.

21. In the written synopsis filed, it has been stated that someaction has been taken against some erring officials of Cochin Corporationand the former Chairman of the KCZMA/appellant, and vigilance casesare pending. It is admitted that a vigilance case is pending against theChief 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 theproject in question, actions taken against other violators also sought tobe set up.

23. KCZMA/appellant sub-committee report of 31.8.2010 givingin principle approval/recommendation to the project and recommendingimposition of fine is stated to be based on CESS report of May, 2005,which was based on HTL, which was subsequently found onsuperimposition, to involve land reclamation and resulted in a threemember committee report dated 21.7.2014.

24. Learned senior counsel also referred to a catena of judgmentsto advance the proposition that in the ‘no development zone’ there couldnot be permissions granted and that this Court has frowned upon thepractice of regularisation of unauthorised construction where environmentissues are involved.

Stand of the Cochin Municipal Corporation:

25. The Corporation has largely confined itself to the issue ofFAR sanction of 1.99. It is stated that the maximum FAR of theCorporation of Cochin is 2.5 as clarified by MoEF. In the Kerala BuildingRules, 1999, the maximum FAR of 1.5 was extended to 2.5 FAR, which A

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Acontinued till 22.2.2001 when Rule 31 was amended and maximum FARwas 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. Itwas in these circumstances that the FAR of 1.99 was made available.

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Stand of the State of Kerala:

27. The State of Kerala has more or less supported the stand ofKCZMA but in the course of arguments it does appear that one aspectwhich had really troubled it was the directions whereby the Collectorwas sought to be made responsible for the management of Rs.1 croreCfine to be deposited as also the feasibility of utilising the same.

Stand of the Ministry of Environment and Forests:

28. The Ministry of Environment and Forests has indulged in acomplete flip-flop-flip in its affidavit without even explaining the reasonsDfor the same. The original affidavit was filed before the High Court on19.5.2016 by one Dr. S.K. Susarla, Advisor with the Ministry. Theaffidavit records that the Ministry was made a party to the proceedingsby the orders of the Court in the writ proceedings. The affidavit statesthat based on the recommendations of the KCZMA, SEIAA, Kerala, itwas found that the project came under category ‘B’ and the projectEproponents adhered to the conditions laid down and the construction is inorder. The relevant paras 19 & 20 are reproduced hereinbelow:

“19. That the project proponents have adhered to the conditionslaid down by the SEIAA and have not violated any of theprovisions.

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20. That the said constructions are technically as per the provisionsof the CRZ Notifications 1991 and EIA Notifications 2006.”

29. In the present proceedings also an affidavit dated 6.11.2017 isavailable, which affirms that SEIAA, Kerala was in place in 2013 andthe project was a category ‘B’ project as per EIA notification of 2006,Gthe appraisal was to be done at the State level by the SEIAA. Theaverments in para 17 are as under:

“17. It is submitted that SEIAAs/SEACs comprises of memberswho are well qualified and have requisite expertise in varioussectors to examine, appraise the projects and recommend them H

for grant of Environmental Clearance imposing all suitableenvironmental conditions to ensure sustainable environmentalmanagement. The consideration of such projects at SEIAA/SEAClevel is to decentralise the powers confined to the UnionGovernment and to streamline and expedite the process of grantof Environmental Clearance to building construction projects inview of the growing demand of housing to all.”

30. On the conclusion of the hearing, when crystallised writtensynopsis 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 affidavitis in “continuation” of the earlier affidavit dated 6.11.2017 filed on7.11.2017. For the first time, it is sought to be now pleaded that CRZNotification, 1991, CRZ Notification, 2011 and EIA Notification, 2006have been violated and that prior clearance under the Notifications beforethe commencement of construction activity was mandatory. It is alsosought to be alleged that reclaimed water bodies and land falling underCRZ for housing projects is prohibited under CRZ Notification. Thepost construction environment clearance is stated to have been grantedto the project by SEIAA without appraisal and recommendations of SEACand in the absence of approval of KCZMA. This affidavit runs into 31paragraphs with annexures.

31. We fail to appreciate the contradictory stands of the authorityand the endeavour to set up a different case after the conclusion of thehearing. Such conduct is unacceptable.

DLF’s stand:

32. DLF has sought to emphasise that while an entrepreneur isobliged to obtain all the requisite permissions, there is also a correspondingobligation on the Regulatory Authorities to facilitate informed decisionsand compliances by the entrepreneur. DLF is stated to have obtained allthe requisite permissions for construction of the site from variousauthorities including the Municipal Authorities. The issue pertains onlyto the environment clearance and the CRZ on which aspects there havebeen varying stands by different authorities and also changing stands ofthe 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 registeredsale deed documents of land, assuming without admitting, that there is A

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Aany reclamation, DLF had no role to play in the same as the transactionstook place in 2006. The Revenue Authority would certainly know whatis the nature of the area, i.e., whether it is land or not. Linked to thisissue, it is pointed out, that the Coastal Regulation Zone Land Use MapNo.34A prepared in 1996, which had been received by DLF under RTIdirectly from CESS clearly mentions the nature of the property. TheBfiltrations ponds are marked as ‘FP’. There is no such FP marked in thearea 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 referenceto a recital in the sale deeds where the district, sub-districts, taluk, village,Ckara, firka, tenure and survey numbers are all mentioned. Thus, the landcertainly existed at the time of purchase. Not only that the sale deeddated 20.10.2006 mentions the boundary of the land with building Nos.CC29/288 in Item No.7 and 29/201 in item No.9, thereby suggesting that apart of the land had housed two buildings.

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35. Insofar as the Google maps images of February, 2005 andDecember, 2005 are concerned, it is sought to be denied that the darkarea in the images is a water body as is sought to be made out by theKCZMA. In this behalf a reference has been made to the Google mapof September, 2002 not suggesting any water body. The report of theEInstitute of Remote Sensing, where a closer study of Google map ofFebruary, 2005, through the process of separate enlargement would showthat the embankment is well protected without any change that therewas a large massof stagnant water in the property, which has shallowdepth as vegetation below the water, could easily be noticed. This is notstated to have any permanent link with the back water of the ChillavannurFcanal. The Google map of 26.12.2005 was also enlarged by the Instituteof Remote Sensing and the entire Chillavannur lake is seen to havegreen patches of Colocasia trees surviving in low salinity. The propertyis stated to have lush and thick vegetation and coconut trees in the middle,western, and southern side of the property and the Google map clearlyGdistinguishes the geo morphology of the land which is totally differentfrom the Chillavannur canal and confirms the well marked boundary linewith the water body in the Chillavannur canal.

36. The December, 2012 map is stated to show thick vegetationwith no mark of water body and the coastal line abutting ChillavannurHcanal is well defined and marked. It is also pointed out that the CESS in its report of May, 2009 published the coastal regulation zone status reportfor an apartment complex as Vytilla, Cochi and the photograph of thefront page itself shows that the land in question before the constructionin May, 2009 next to Choice Garden is full of coconut trees therebysuggesting that in May, 2009, it was clearly not a water body. Suchcoconut trees could not have come up overnight as they have a gestationperiod of 10-15 years.

37. The development arising from the successive CESS report issought to be analysed and it is alleged that Mr. K.V. Thomas was aparty to these reports. The reports were with KCZMA and, thus, therecould not be any issue of replacement of photographs. The photographon the front cover of the report also shows the coconut trees on theproperty. The CESS report prepared by the same Mr. Thomas andothers in 2009 marks the drain in red colour and describes it as inter-tidalzone falling under CRZ-I(ii). In the 2010 report to which Mr. Joseph isa party while referring to the HTL, the canal is referred to as a drainagecanal and, thus, the requirement of imaginary line not to cut across thewater body would not be invoked. In another report in January, 2011,Mr. Thomas gave recommendations by naming various projects, whichhad committed CRZ violations on the banks of Chillavannur lake, whichhad committed violations by either constructing on a reclaimed filtrationpond or backwater side of authorised buildings and respondent No.1project was not named in the same. Thus, right till February, 2011 atleast, it is submitted, that in the opinion of the KCZMA/appellant, DLFwas stated to be in compliance of all statutory provisions.

38. DLF draws strength from the fact that only part of the areawas found to be in CRZ-II, municipal authorities granted approvals andthat no statutory provisions in 1991 Notification or of September, 2006,made prior CRZ approval before commencement of constructionmandatory. Once KCZMA itself recommended the proposal to MoEF,it was submitted by respondent No.1 that there was no impediment inthe way of proceeding further with the project and there was really nooccasion for the CESS to revisit the issue.

39. It has been sought to be emphasised by Mr. Kapil Sibal, learnedsenior counsel on behalf of DLF that no explanation was sought fromDLF in respect of the observations of September, 2011. The 2012 reportwas also never put to the DLF. Why these aspects were not so put isunexplained.

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A40. Learned senior counsel sought to emphasise that the churningand the rigmarole ultimately did produce a clearance of the project atleast on 11.12.2013 and it was only after construction was complete, thedifferent aspects were triggered off at the behest of Mr. Antony, whohad seen the whole project develop near his property as alleged withoutraising a finger on the issue over a number years. The FSI positionBstands explained by the Corporation. Lastly, however, it was concededthat though the fine was uncalled for, DLF has not sought overturning ofthe fine as it did not file an appeal against the impugned order.

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C41. We commenced this order pointing out the sleeping role of theauthorities which developed into contradictory claims by differentauthorities over factual issues and finally even by the same authority,like MoEF taking contradictory stands, even trying to slip in a furtheradditional stand after conclusion of hearing. It is a matter of concern tous that authorities have not performed their task with promptitude, notDrealising the importance of the role they play including KCZMA/appellant.

42. We would like to deal with this matter on two planes – one isthe general plane; and the other is in the given facts of the case.

43. It is trite to say that the importance of environment andEecological balance requires the enforcement of various Regulations, Rulesand enactments to be strictly followed. Specialised bodies like theKCZMA/appellant have been created to deal with the CRZ Regulationsfor greater sensitivity. It is, thus, no answer to say that it does not havean enforcement mechanism and thus, cannot act.

F44. The case law, which Mr. Shyam Divan took us through itselfbrings forth the importance of compliances.

45. In Anil Hoble v. Kashinath Jairam Shetye[1], it was held thatany illegal structure falling within the ‘No Development Zone’ (200 mtrs.from the HTL) in a CRZ III area was directed to be demolished andeven the permission granted by the Coastal Zone Management AuthorityGwas of no avail. Similarly, the practice of regularising unauthorisedconstructions effected by erring buildings in violation of law has notfound approval from this Court and humanitarian and equitable groundsfound no place in the same. In Union Territory of Lakshadweep v.

1 (2016) 10 SCC 701H

Seashells Beach Resort[2], it has been observed as under:

“30. The High Court’s order proceeds entirely on humanitarianand equitable considerations, in the process neglecting equally, ifnot more, important questions that have an impact on the futuredevelopment and management of the Lakshadweep Islands. Weare not, therefore, satisfied with the manner in which the HighCourt has proceeded in the matter.

31. The High Court obviously failed to appreciate that equitableconsiderations were wholly misplaced in a situation where thevery erection of the building to be used as a resort violated theCRZ requirements or the conditions of land use diversion. No onecould in the teeth of those requirements claim equity or presentthe administration with a faitaccompli. The resort could not becommissioned under a judicial order in disregard ofseriousobjections that were raised by the Administration, whichobjections had to be answered before any direction could issuefrom a writ Court.”

46. To the aforesaid extent are also the observations in EshaEkta Apartments Cooperative Housing Society v. MunicipalCorporation of Mumbai[3].

47. In Piedade Filomena Gonsalves v. State of Goa[4], it hasbeen observed as under:

“5. It is pertinent to note that during the pendency of the writpetition, the appellant had moved two applications, one of whichis dated 11.7.1995, for the purpose of regularisation of theconstruction in question. The Goa State Coastal Committee forEnvironment, the then competent body constituted a sub-committeewhich inspected the site and found that the entire constructionraised by the appellant fell within 200 metres of HTL and theconstruction had been carried out on existing sand dunes. TheGoa State Coastal Committee for Environment, in its meeting dated20.10.1995, took a decision inter alia holding that the entireconstruction put up by the appellant was in violation of the CoastalRegulation Zone Notification.

2 (2012) 6 SCC 136

3 (2013) 5 SCC 257

4 (2004) 3 SCC 445

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6. The Coastal Regulation Zone Notifications have been issued inthe interest of protecting environment and ecology in the coastalarea. Construction raised in violation of such regulations cannotbe lightly condoned. We do not think that the appellant is entitledto any relief. No fault can be found with the view taken by theHigh Court in its impugned judgment.”

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48. We are of the view that if the allegation of large scale violationsby DLF were to be correct there would be no alternative but to bringdown the structure. The moot point, however, remains is as to what isthe correct analysis of the factual position in the case.

C49. We would also like to emphasise that there has to beundoubtedly greater clarity on the processes and a better understandingbetween various authorities so that developers are not left in the lurch –violators have to be punished but it cannot be that the authorities continueto do a flip-flop-flip putting the large investments at stake in a jeopardy.This is what appears to have happened in the present case.D

50. We also make it clear that in the future, wherever permissionsare required to come and are to be obtained before commencement ofconstruction, it would be no answer that activity can be carried on withoutobtaining the permissions. Simultaneously, the permissions itself areenvisaged in a time bound schedule and not through improvement ofEcases 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 onconstruction having been obtained by DLF. The land was purchasedFthrough sale deeds and the sale deeds specified the nature of the area.It would, thus, be no answer to state that even the Revenue authoritiesare oblivious to what is the nature of the land. DLF, thus, purchased theland legally and obtained requisite permissions including qua the FAR,which aspect stands explained by the Corporation as to why it is notG1.50 as alleged by KCZMA/appellant nor 2.5 as is alleged by DLF but inthe given case was taken as 2 and that is why 1.99 FAR was permittedso that there is no doubt about the legality of the FAR granted. We maynot delve further on this aspect as the crucial question is relating to theenvironment clearance and the clearance required for the CRZ area.

52. The possibility of some area being CRZ-I area had given rise H

to the observations by the CEAC in its 63[rd] meeting on 16-18.8.2008 forthe project to take CRZ clearance as well while granting environmentalclearance. Thus, the environmental clearance was also granted and theaspect which remained was relating to the CRZ area.

53. There are stated to be notified authorities numbering seven atthat stage, who would prepare reports for analysis by the KCZMA/appellant and one such notified agency was CESS. The CESS did givea 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 welldeveloped, constructed area in the large expanse around the property inquestion, also stood enumerated in that report.

54. The fault of DLF was that it should have stayed its hand tillCRZ permission had also been obtained but the fact remains that onaccount of delay in the same it was perceived as a deemed permissioncase – rightly or wrongly. The construction in between was also stoppedbut the appellant itself decided to recommend the project proposal toMoEF on 20.3.2010 on the basis that the narrow canal was a drainagecanal. If there was any doubt about the same, it should have beensettled at that stage itself. The sub-committee appointed by the appellantalso categorically observed that the narrow canal was a drainage canalbut 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, shouldCESS,after two years be again asked to visit at the request of the appellantis not really understood. In the meantime most of the construction wasapparently done. The complaints made by Mr. Antony started playing arole from 2012, a person who, also for reasons best known to him, decidedto knock at the doors of the authority and the Court when most of theproject was over. Interestingly CESS, once again, visited based onrecommendation of the appellant in November, 2012 at the same timewhen Mr. Antony filed the petition.

56. In our view it is undoubtedly the specialised authorities whohave to carry out the task, but with promptitude. Their lackadaisicalattitude has permitted DLF to raise the issue of a deemed environmentclearance by virtue of Clause 8(3) of the EIA Notification of 2006, whichhas already been extracted hereinabove. While the environment A

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Aclearance was applied on 27.11.2007, the integrated clearance wasgranted on 11.12.2013 after six years, while by 2012, the project stoodcompleted.

57. Insofar as the nature of the area is concerned, we have givendue weightage to the revenue records, which are reflected in the saleBdeeds executed. Some of the aspects which have weighed with theCourts below do not find favour with us. The reason is that the allegedviolations have not emerged with clarity.

58. The Coastal Regulation Zone land use map 34A producedbefore us by DLF and as explained by Mr. Kapil Sibal, learned seniorCcounsel shows that wherever filtration ponds existed they were sorecorded. In 1995-96 much prior to the year 2000 no such filtrationponds are recorded in the area constructed upon. Therefore, the findingsto the contrary cannot be sustained. There could not have been areclamation of the filtration pond by DLF.

D59. In the course of arguments, Mr. Shyam Divan, learned seniorcounsel has sought to rely upon the Google images of February, 2005and December, 2005 to suggest that there has been obviously large scalereclamation. On behalf of DLF, Mr. Sibal has been able to throw gravedoubts over reliance of such Google images for the purposes of comingto the conclusion that the dark area in the image is a water body apartEfrom the fact that in the sale deed dated 20.10.2006 it is not so mentionedas per the revenue record. The Google images produced on behalf ofDLF show that in September, 2003 there was no suggestion of a waterbody. DLF has also taken the assistance of a report of the Institute ofRemote Sensing in respect of two Google images relied upon by theFappellant to substantiate its case and explain that there was a large massof stagnant water in the property of shallow depth with vegetation belowthe water visible. This water appears not to have any permanent linkwith the backwater of the Chillannavur canal. The existence of thecoconut trees is another aspect which throws doubt on the submissionsmade on behalf of the appellant.G

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60. As noticed above, if the appellant had acted with promptitudeat the relevant time, we are sure that the correct picture would havebeen available whether for or against.

61. On behalf of CESS also there have been meanderings andcontradictions in the approach, even though Mr. K.V. Thomas was partyH

to all of them. In the context of the drain, in the 2009 report it is clearlystated to be an inter tidal zone falling under CRZ 1(ii). The report hasbeen prepared after inspection. The HTL from the Choice Gardenbuilding was found cutting the canal, which was labelled as a drainagecanal and thus, was not cutting a water body. It is not understood howthe contradictions arose subsequently in the 2011 and 2012 reports.

62. The approach of MoEF also appears to be strange and acomplete contradiction between what was stated before the High Court,before us three weeks before the conclusion of hearing and then theendeavour to slip in an additional affidavit post conclusion of hearing.

63. The CEAC in 2008 itself had suggested that the CRZCommittee may examine the proposal which was so done. This wasdiscussed with the appellant and further requisite information was alsosought. The report from the CESS was obtained in May, 2009 and onlya part of the project area was found in CRZ II category. After goingthrough all the procedural requirements, the appellant made arecommendation on 31.8.2010 that the construction falls in CRZ II areasand the narrow canal was not an impediment to the construction. Theappellant itself decided to recommend the proposal to the MoEF.

64. It is the own wisdom of the MoEF that with the establishmentof SEIAA the whole file should be forwarded to it and this was sought tobe justified on the basis of the experts available with SEIAA. Whatweighs with us most is that post transfer of the file on 11.12.2013, theproposal was cleared by SEIAA, being the final authority, and that hasnever been withdrawn or cancelled or challenged. This clearance waspost a show cause notice seeking explanation from DLF and onexplanation being offered, was issued. Now for the authorities to sayotherwise or contradict themselves would not be fair to DLF and wouldcause grave uncertainty if such an approach was to be permitted.

65. We are, thus, not in agreement with the findings of the Courtsbelow on the violations alleged against DLF except to the extent thatthere is a question mark on the issue of not having obtained prior clearanceand proceeding on the basis of a deemed clearance, which aspect, atleast for the future we have clarified that whatever be the manner inwhich Clause 8(3) of Notification of 2006 is worded, it should implyhenceforth a prior clearance and necessary clarifications should be issuedby the concerned authorities in a time bound manner to obviate such AB

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Asituations to arise in the future. We feel that the direction contained inthe 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 againstthe Collector of the State Government to monitor and do this task wouldBbe non-workable and it is appropriate that this amount is transferred tothe KCZMA/appellant for purposes of better enforcement anddevelopment of CRZ area.

67. In conclusion we set aside the findings of the impugned orderwhile sustaining the fine of Rs.1 crore with the direction for strictCadherence to the norms in future and avoidance of such contradictionsby the authorities. We also feel it appropriate that in view of the professedpolicy to have more single window clearance, the methodology of suchprocessing of such applications should be endeavoured to be simplifiedso that there is less uncertainty and better enforcement. The same maybe done within a period three months from the receipt of the copy of theDorder.

68. The appeals are disposed of in the aforesaid terms. The partiesare left to bear their own costs.

ENidhi Jain

Appeals disposed of.

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