Secretary, Kerala State Coastal Management Authority vs DLF Universal Limited (Formerly known as Adelie Builders and Developers Pvt. Ltd.) & Ors.

Leave granted.

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.

Now coming to the facts of the case at hand, the project in question is of respondent No.1, which purchased nearly 5.12 acres of property from

different vendors in the year 2006 envisaging a multi-storey residential complex of about 185 units located on the eastern bank of Chilavannurkayal

(backwaters) in Kerala. The area in question, as apparent from the status report of the Coastal Regulation Zone (`CRZ'') itself shows that the area

falls in the Kochi Corporation and the said area, along with the adjoining panchayats is highly developed. A lot of low lying areas including tidal

marshes and filtration ponds bordering the backwaters are alleged to have been reclaimed for construction and other development activities by

various third parties and the area close to the site in question is well developed and built up.

Respondent No.1 obtained a building permit for the project in question issued by the Corporation of Cochin (hereinafter referred to as the

`Corporation'') on 22.10.2007 under the Kerala Building Rules, 1984. It is also not really disputed that the other linked permissions such as NOC

from State Pollution Control Board, NOC from the Fire & Rescue Department and height clearance from the Navy was also obtained. The

builders DLF Universal Limited (formerly known as `Adelie Builders & Developers Private Limited'') (hereinafter referred to as `DLF'') applied

for environment clearance to the Ministry of Environment and Forests on 27.11.2007. The intervening factor was a Notification dated 14.9.2006

issued by the Ministry of Environment and Forests in furtherance of the environment protection in exercise of power conferred by sub-section (1)

and clause (v) of subsection (2) of Section 3 of the Environment Protection Act, 1986 (hereinafter referred to as the `said Act'') read with clause

(d) of sub-rule (3) of Rule 5 of the Environment Protection Rules, 1986. This Notification was in supersession of the earlier Notification of

27.1.1994. The Notification states that the process was followed duly and in accordance with the objective of the National Environment Policy as

approved by the Union Cabinet on 18.5.2006, such process was being modified. All new projects required prior environmental clearance from the

Central Government as applicable or as the case may be the State Environment Impact Assessment Authority (for short `SEIAA'') duly constituted

by the Central Government under sub-section (3) of Section 3 of the said Act. The Notification also provided that the SEIAA would base its

decision on the recommendation of the State or Union Territory Level Expert Appraisal Committee ( for short `SEAC'') as to be constituted

following the Notification and in the absence of the setting up of these authorities, a category provided would be treated as category `A'' project.

Clause 8 dealt with the Grant or Rejection of Prior Environmental Clearance (EC) and the relevant clauses of the same are reproduced hereunder:

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.

As we have been informed, these authorities have been constituted subsequently only on 19.12.2011 and, thus, logically in view of what has

been set out hereinabove, the project in question could possibly have been treated as a category `A'' project. The project of DLF was examined

by the Central Expert Appraisal Committee (for short `CEAC'') in its 63rd meeting and was approved as a ""Silver Grading"" project. A suggestion

was made by the CEAC that some of the project area falls under the Coastal Regulation Zone (`CRZ'') and thus, the details of the project may be

examined by the CRZ Committee of the Ministry and a separate clearance should be acquired under the CRZ project. In furtherance of this

recommendation DLF was required to obtain the CRZ status report from the Centre for Earth Science Studies (for short `CESS''),

Thiruvanathapuram, which is stated to be one of the seven authorised/identified agencies. An application is stated to have been made by DLF on

23.9.2008 to CESS, which in turn made a positive recommendation in May, 2009, stating that the project land was situated at CRZ II and there

was no area in CRZ (I and i) in the project area or close to it. It may be noted at this stage that there have been some subsequent reports by

CESS in September, 2011 and a communication dated 11.8.2014 but the project was more or less over even by the first date or was sufficiently

advanced. The purport of the subsequent developments will be considered hereinafter but suffice to say that the first report sought to point out

reclamation of backwater by DLF after 2009, earlier reclamation of filtration ponds and paddy fields and shifting of high tide lines. The

communication dated 11.8.2014 pertained to alleged replacement of some photographs from the CESS report of May, 2009 and referred to a

stream/natural canal at site that had been mapped by the CESS.

It appears that DLF, however, did not wait for the environment clearance and the construction activity went on at rapid pace at site ostensibly

on a perceived deemed clearance since there was no communication during this period of time. This is apparent from a visit report dated

29.10.2009 of Kerala Coastal Zone Management Authority (for short `KCZMA'')/appellant. This resulted in the KCZMA/appellant issuing a

letter dated 21.1.2010, seeking explanation for having started construction without obtaining the necessary permissions/approval/clearance from

KCZMA/appellant. However, subsequently on 20.3.2010 in its 40th meeting the KCZMA/appellant, post discussion of the site inspection report,

decided to recommend the project proposal to the MoEF. The relevant portion of this is extracted hereinafter:

KCZMA has discussed the site inspection report in detail and 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.

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 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.

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.

The aforesaid report of the sub-committee was examined and minutes drawn on 31.8.2010. The salient aspect recorded in these minutes is that

the sub-committee examined the documents submitted by DLF and also obtained clarifications in respect of SFI from the City Town Planners. The

case was examined in the light of recent amendments of the MoEF with regard to CRZ-II region and a site visit was also made on 19.7.2010. On

a detailed examination, two aspects, which once again emerge are: (i) Any portion protruding beyond the imaginary line towards backwaters may

be demolished (which has apparently been done); (ii) In view of ""procedural violations"" found by the sub-committee, a penalty for the same should

be imposed.

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.

The Revenue Divisional Officer, Fort Kochi on 21.11.2011 issued a provisional stock memo to DLF to hold back construction on the project

land. There was an allegation made by the village officer that about 50 cents of the Chilavannur river had been illegally reclaimed, which the RDO

on 17.12.2011 reported to the Cochin Corporation.

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 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 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.

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.

The learned single Judge rendered his verdict on 8.12.2014 finding practically everything against DLF and categorised the whole construction

as illegal and in violation of law, particularly the CRZ notification, and was thus not capable of being regularised. The illegal structure was directed

to be demolished. This order was assailed in writ appeal No.1987/2014 by DLF. A separate writ petition was also filed, being writ petition

No.20555/2015, challenging the report dated 21.7.2014 by the three member committee appointed by the KCZMA/appellant. The construction

being complete and the flat buyers interest being involved, these apartment buyers also filed writ petition Nos.2810/2015 and 3375/2015 praying

for issuance of occupancy certificates.

The Division Bench ultimately by the impugned order while broadly upholding the findings of the learned single Judge and setting aside the

order of demolition, directed regularisation subject to fine/compensation amount of Rs. 1 crore. This amount was to be deposited before the

District Collector, Ernakulam to be kept in a separate account for being used exclusively for building up the environment, maintaining ecological

balance in the area situated on the eastern side of the Chilavannur river, with a further direction to the District Collector to submit periodic reports

before the Court as to the utilisation of the amount for the activities undertaken, in every six months. The writ petitions filed by the prospective

buyers were dismissed but without prejudice to get the occupancy certificates for the building from the local authority subject to the satisfaction of

the costs. Writ petition No.20555/2015 was also dismissed.

Stand of KCZMA/Appellant

The KCZMA/appellant are before us by appeal with Mr. Shyam Divan, learned Senior Advocate seeking to vehemently canvas that the

various violations required the building to be demolished or in the alternative, the fine substantially enhanced. He took us meticulously through the

development in the case as discussed above with each of the events to canvas the violations which have taken place. On the Court query about the

silence of this important authority for such a long period of time, the only answer available was that it did not have an enforcement mechanism and

is dependent on the Corporation for the same. That, in our view, could hardly be an answer for such inaction if there were violations. Enforcement

is different from detection of violations. There can hardly be any doubt about the bounden duty of this authority to play a crucial role in preserving

the environment in the coastal area and it cannot wash its hands off by giving an explanation for inaction as the alleged absence of an enforcement

force. Had this authority kept an eye open right from the beginning and played the role which it was required to play, the situation which has come

to pass would not have so occurred and the identification of the violations, if any, would have been made at the threshold stage itself. This did not

happen here.

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.

One of the main bedrocks of DLF, of having obtained the integrated environment/CRZ clearance granted by SEIAA on 11.12.2013 was not

denied but it was sought to be contended that the clearances ought to have been obtained prior to the commencement of construction which would

at the relevant stage have been granted by the MoEF. In any case SEIAA ought to have based its decisions on the recommendations of the

SEAC, which was not done. The SEAC had only considered the environment clearance and not the CRZ clearance for the project. That file ought

not to have been transferred to SEIAA by the MoEF.

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.

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.

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.

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.

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.

Learned senior counsel also referred to a catena of judgments to advance the proposition that in the `no development zone'' there could not be

permissions granted and that this Court has frowned upon the practice of regularisation of unauthorised construction where environment issues are

involved.

Stand of the Cochin Municipal Corporation:

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.

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:

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:

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:

That the project proponents have adhered to the conditions laid down by the SEIAA and have not violated any of the provisions.

That the said constructions are technically as per the provisions of the CRZ Notifications 1991 and EIA Notifications 2006.

In the present proceedings also an affidavit dated 6.11.2017 is available, which affirms that SEIAA, Kerala was in place in 2013 and the

project was a category `B'' project as per EIA notification of 2006, the appraisal was to be done at the State level by the SEIAA. The averments

in para 17 are as under:

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.

On the conclusion of the hearing, when crystallised written synopsis had to be filed, an affidavit is sought to be slipped in by one Mr. Ritesh

Kumar Singh, Joint Secretary of the MoEF, stating that this affidavit is in ""continuation"" of the earlier affidavit dated 6.11.2017 filed on 7.11.2017.

For the first time, it is sought to be now pleaded that CRZ Notification, 1991, CRZ Notification, 2011 and EIA Notification, 2006 have been

violated and that prior clearance under the Notifications before the commencement of construction activity was mandatory. It is also sought to be

alleged that reclaimed water bodies and land falling under CRZ for housing projects is prohibited under CRZ Notification. The post construction

environment clearance is stated to have been granted to the project by SEIAA without appraisal and recommendations of SEAC and in the

absence of approval of KCZMA. This affidavit runs into 31 paragraphs with annexures.

31.We fail to appreciate the contradictory stands of the authority and the endeavour to set up a different case after the conclusion of the hearing.

Such conduct is unacceptable.

DLF''s stand:

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.

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 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.

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.

Insofar as the Google maps images of February, 2005 and December, 2005 are concerned, it is sought to be denied that the dark area in the

images is a water body as is sought to be made out by the KCZMA. In this behalf a reference has been made to the Google map of September,

2002 not suggesting any water body. The report of the Institute of Remote Sensing, where a closer study of Google map of February, 2005,

through the process of separate enlargement would show that the embankment is well protected without any change that there was a large massof

stagnant water in the property, which has shallow depth as vegetation below the water, could easily be noticed. 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.

The December, 2012 map is stated to show thick vegetation with no mark of water body and the coastal line abutting Chillavannur canal 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 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.

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 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.

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.

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 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.

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 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.

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.

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

In Anil Hoble v. Kashinath Jairam Shetye, (2016) 10 SCC 701, 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 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 Resort, (2012) 6 SCC 136, it has been observed as under:

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.

The High Court obviously failed to appreciate that equitable-considerations 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.

To the aforesaid extent are also the observations in Esha Ekta Apartments Cooperative Housing Society v. Municipal Corporation of Mumbai,

(2013) 5 SCC 357.

In Piedade Filomena Gonsalves v. State of Goa, (2004) 3 SCC 445, it has been observed as under:

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.

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.

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.

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 a jeopardy. This is what appears to have happened in the present case.

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.

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 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.

The possibility of some area being CRZ-I area had given rise to the observations by the CEAC in its 63rd meeting on 16-18.8.2008 for the

project to take CRZ clearance as well while granting environmental clearance. Thus, the environmental clearance was also granted and the aspect

which remained was relating to the CRZ area.

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.

The fault of DLF was that it should have stayed its hand till CRZ permission had also been obtained but the fact remains that on account of

delay in the same it was perceived as a deemed permission case - rightly or wrongly. The construction in between was also stopped but the

appellant itself decided to recommend the project proposal to MoEF on 20.3.2010 on the basis that the narrow canal was a drainage canal. If

there was any doubt about the same, it should have been settled at that stage itself. The sub-committee appointed by the appellant also

categorically observed that the narrow canal was a drainage canal but recommended a fine being imposed for not obtaining prior

approval/clearance. Really speaking the matter should have ended with that, with a quantification of the fine to be imposed.

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.

In our view it is undoubtedly the specialised authorities who have to carry out the task, but with promptitude. Their lackadaisical attitude has

permitted DLF to raise the issue of a deemed 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.

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.

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.

In the course of arguments, Mr. Shyam Divan, learned senior counsel 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.

As noticed above, if the appellant had acted with promptitude at the relevant time, we are sure that the correct picture would have been

available whether for or against.

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.

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.

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 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.

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.

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 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.

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.

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.

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