REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.117-120 of 2018  [Arising from SLP (Civil) Nos.6929-6932/2017]

THE SECRETARY, KERALA STATE COASTAL MANAGEMENT AUTHORITY ….Appellant

versus

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

With

CIVIL APPEAL No.121 of 2018 @SLP(C) No.6861/2017

CIVIL APPEAL No.122 of 2018  @SLP(C) No.7306/2017

CIVIL APPEAL No.123 of 2018  @ SLP(C) No.9929/2017

J U D G M E N T

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SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The battle of environment protection against development is a never

ending one and the present dispute primarily is an offshoot of such a

conflict.  The dispute between the developers of a housing project and

the  environment  authorities  is  also  one  where  different  authorities

have taken variant stands.   It  is  the say of the developer that  they

obtained all requisite permissions and have proceeded with the project

in pursuance thereof while the coastal management authority and the

environment authority plead otherwise.  From the perspective of the

Kerala  State  Coastal  Management  Authority,  which  is  the  main

appellant before us, it has been a saga of a sleeping authority – not

having an afternoon siesta but a Kumbhakarna sleep albeit of almost

four  years.   On being woken up,  it  suddenly  seeks  to  see  various

violations wanting to put the clock back.  In this period things have

been done and dusted and a huge project has taken shape, which is at

the final stage.

3. Now coming to the facts of the case at hand, the project in question is

of respondent No.1, which purchased nearly 5.12 acres of property

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from different  vendors  in  the  year  2006  envisaging  a  multi-storey

residential complex of about 185 units located on the eastern bank of

Chilavannurkayal (backwaters) in Kerala.   The area in question, as

apparent  from  the  status  report  of  the  Coastal  Regulation  Zone

(‘CRZ’) itself shows that the area falls in the Kochi Corporation and

the  said  area,  along  with  the  adjoining  panchayats  is  highly

developed.   A lot  of  low lying  areas  including  tidal  marshes  and

filtration ponds bordering the backwaters  are  alleged to  have been

reclaimed  for  construction  and  other  development  activities  by

various third parties and the area close to the site in question is well

developed and built up.

4. Respondent  No.1  obtained  a  building  permit  for  the  project  in

question issued by the Corporation of Cochin (hereinafter referred to

as the ‘Corporation’) on 22.10.2007 under the Kerala Building Rules,

1984.  It is also not really disputed that the other linked permissions

such as NOC from State Pollution Control Board, NOC from the Fire

& Rescue Department and height clearance from the Navy was also

obtained.  The builders DLF Universal Limited (formerly known as

‘Adelie Builders & Developers Private Limited’) (hereinafter referred

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to  as  ‘DLF’)  applied for  environment  clearance  to  the Ministry of

Environment and Forests on 27.11.2007.  The intervening factor was a

Notification dated 14.9.2006 issued by the Ministry of Environment

and Forests in furtherance of the environment protection in exercise of

power conferred by sub-section (1) and clause (v) of subsection (2) of

Section  3  of  the  Environment  Protection  Act,  1986  (hereinafter

referred to as the ‘said Act’) read with clause (d) of sub-rule (3) of

Rule 5 of the Environment Protection Rules, 1986.  This Notification

was  in  supersession  of  the  earlier  Notification  of  27.1.1994.   The

Notification  states  that  the  process  was  followed  duly  and  in

accordance with the objective of the National Environment Policy as

approved by the Union Cabinet on 18.5.2006, such process was being

modified.   All new projects required prior environmental  clearance

from the Central Government as applicable or as the case may be the

State Environment Impact Assessment Authority (for short ‘SEIAA’)

duly constituted by the Central Government under sub-section (3) of

Section 3 of the said Act.   The Notification also provided that  the

SEIAA would base its decision on the recommendation of the State or

Union  Territory  Level  Expert  Appraisal  Committee  (  for  short

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‘SEAC’) as to be constituted following the Notification and in the

absence of  the setting  up of  these authorities,  a  category provided

would be treated as category ‘A’ project.   Clause 8 dealt  with the

Grant or  Rejection of Prior Environmental  Clearance (EC) and the

relevant clauses of the same are reproduced hereunder:

“8. Grant or Rejection of Prior Environmental Clearance (EC):

(i) The regulatory authority shall consider the recommendations of the  EAC  or  SEAC  concerned  and  convey  its  decision  to  the applicant  within  forty  five  days  of  the  receipt  of  the recommendations  of  the  Expert  Appraisal  Committee  or  State Level Expert Appraisal Committee concerned or in other words within  one  hundred  and  five  days  of  the  receipt  of  the  final Environment  Impact  Assessment  Report,  and  where Environmental  Impact  Assessment  is  not  required,  within  one hundred and five days of the receipt of the complete application within requisite documents, except as provided below.

xxxx xxxx xxxx xxxx

(iii) In the event that the decision of the regulatory authority is not communicated  to  the  applicant  within  the  period  specified  in sub-paragraphs (i) or (ii) above, as applicable, the applicant may proceed  as  if  the  environment  clearance  sought  for  has  been granted or denied by the regulatory authority in terms of the final recommendations  of  the  Expert  Appraisal  Committee  or  State Level Expert Appraisal Committee concerned.”

5. As we have been informed, these authorities have been constituted

subsequently only on 19.12.2011 and, thus, logically in view of what

has been set out hereinabove, the project in question could possibly

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have been treated as a category ‘A’ project.  The project of DLF was

examined  by  the  Central  Expert  Appraisal  Committee  (for  short

‘CEAC’) in its 63rd meeting and was approved as a “Silver Grading”

project.  A suggestion was made by the CEAC that some of the project

area falls under the Coastal Regulation Zone (‘CRZ’) and thus, the

details of the project may be examined by the CRZ Committee of the

Ministry and a separate clearance should be acquired under the CRZ

project.  In furtherance of this recommendation DLF was required to

obtain  the  CRZ  status  report  from  the  Centre  for  Earth  Science

Studies (for short ‘CESS’), Thiruvanathapuram, which is stated to be

one of  the  seven authorised/identified  agencies.   An application  is

stated to have been made by DLF on 23.9.2008 to CESS, which in

turn made a positive recommendation in May, 2009, stating that the

project land was situated at CRZ II and there was no area in CRZ (I

and i) in the project area or close to it.  It may be noted at this stage

that there have been some subsequent reports by CESS in September,

2011 and a communication dated 11.8.2014 but the project was more

or less over even by the first date or was sufficiently advanced.  The

purport of the subsequent developments will be considered hereinafter

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but suffice to say that the first report sought to point out reclamation

of  backwater  by  DLF  after  2009,  earlier  reclamation  of  filtration

ponds  and  paddy  fields  and  shifting  of  high  tide  lines.   The

communication dated 11.8.2014 pertained to alleged replacement of

some photographs from the CESS report of May, 2009 and referred to

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

6. It  appears  that  DLF,  however,  did  not  wait  for  the  environment

clearance and the construction activity went on at rapid pace at site

ostensibly  on  a  perceived  deemed  clearance  since  there  was  no

communication during this period of time.  This is apparent from a

visit  report  dated  29.10.2009 of  Kerala  Coastal  Zone Management

Authority  (for  short  ‘KCZMA’)/appellant.   This  resulted  in  the

KCZMA/appellant  issuing  a  letter  dated  21.1.2010,  seeking

explanation  for  having  started  construction  without  obtaining  the

necessary  permissions/approval/clearance  from  KCZMA/appellant.

However,  subsequently  on  20.3.2010  in  its  40th meeting  the

KCZMA/appellant,  post  discussion  of  the  site  inspection  report,

decided  to  recommend  the  project  proposal  to  the  MoEF.   The

relevant portion of this is extracted hereinafter: “KCZMA has discussed the site inspection report in detail and

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decided  to  recommend  the  project  proposal  to  MoEF.  The contention  of  the  Subcommittee  that,  the  narrow  canal encountered in the imaginary line drawn parallel to the High Tide Line from the Choice Garden building is only a drainage canal  as  has  been  agreed  by  the  meeting,  since  the  narrow drainage  canal  need  not  be  considered  as  a  canal.   The Authority  also  decided  to  collect  a  full  set  of  modified documents  as  per  provisions  of  CRZ Notification,  including existing FSI & FAR as on 19th February, 1991.”

7. A sub-committee  appointed  by  KCZMA/appellant  visited  the  site

again and made certain recommendations dated 19.7.2010.  A perusal

of  the report  of  the sub-committee states  that  the construction had

already commenced and the structure of a sizeable number of floors

of a multi-storey residential project was nearing completion.  This is

stated to have caused some impediment to the mandate to evaluate the

proposed site for CRZ clearance.  It, however, records that the site

falls in CRZ II category and does not have any CRZ I(i) areas, such as

mangroves.  In Survey No.1019 Choice Garden Apartments existed

which was, however, in existence prior to 19.2.1991.  Insofar as the

narrow canal was concerned it is noted that the same functioned as a

municipal drain for waste water drainage from urban conglomeration

of  the  northern side of  the project  site.   The  residential  apartment

construction NCR II was found to be permissible but the proposed

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construction has to be on the landward side of the existing road.  The

clarifications given by the MoEF were also noted that the imaginary

line to be drawn should not cut across any river, creek, backwater,

estuary,sand beach or mangroves.  The recommendations were made

and there were two significant aspects: i. The shortest  distance from the high tide line to existing authorised

building  of  the  adjoining  plot  (Choice  Garden  Apartments),  being

13.5 mtrs., the imaginary line was drawn parallel to the HTL towards

seaward side of the existing authorised building.

ii. DLF should have obtained CRZ clearance from KCZMA/appellant

before starting the construction, which was a procedural violation.

8. In a nutshell while all aspects including the narrow canal was found

not  to  be  an  impediment,  there  was  a  violation  of  lack  of  prior

approval.

9. The aforesaid report of the sub-committee was examined and minutes

drawn on 31.8.2010.  The salient aspect recorded in these minutes is

that the sub-committee examined the documents submitted by DLF

and also obtained clarifications in respect of SFI from the City Town

Planners.  The case was examined in the light of recent amendments

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of the MoEF with regard to CRZ-II region and a site visit was also

made on 19.7.2010.  On a detailed examination, two aspects, which

once  again  emerge  are:  (i)  Any  portion  protruding  beyond  the

imaginary  line towards backwaters  may be demolished (which has

apparently been done); (ii) In view of “procedural violations” found

by the sub-committee, a penalty for the same should be imposed.

10. The matter somehow did not end at this since the CESS is stated to

have visited the site again in June, 2011 and submitted a report in

September, 2011.  This was in a sense the beginning of some further

adverse observations for DLF.  It was now opined that apparently land

reclamation was carried out by DLF from 2009 onwards which had

caused the shifting of the backwater’s banks by five metres.  A major

part of the area, which was reclaimed was found to be part of low

lying areas such as filtration ponds/paddy fields and lastly the lay out

building complex needed to be superimposed on the local level CRZ

map to get the exact distance from HTL.

11. The Revenue Divisional Officer, Fort Kochi on 21.11.2011 issued a

provisional  stock  memo to  DLF to  hold  back  construction  on  the

project land.  There was an allegation made by the village officer that

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about 50 cents of the Chilavannur river had been illegally reclaimed,

which the RDO on 17.12.2011 reported to the Cochin Corporation.

12. The trigger for this letter was stated to be a complaint received from

one Mr. Antony A.V. of Chilavannur, Kochi pursuant whereto a team

of experts from KCZMA/appellant had visited the site.  Mr. Antony is

the  original  petitioner  in  the  petition  from  which  the  present

proceedings arise.   The site was visited on 9.11.2012 by CESS on

intimation by KCZMA/appellant and a report was submitted seeking

to  cast  certain  question  marks  over  its  own earlier  reports.   Thus

issues, such as the status of the plot prior to 2009 having not been

considered while  delineating  the  HTL,  reclamation/modification  of

the backwater site, area being part of water body were all sought to be

raised.  This was followed by a petition filed on 15.11.2012 by Mr.

Antony, being Writ Petition No.27248/2012, seeking to interdict DLF

from  effecting  any  further  construction  and  to  direct  Cochin

Corporation  to  implement  the  various  directions  of

KCZMA/appellant.   The  said  Mr.  Antony  approached  the  Court

alleging to be living in the vicinity of the area and being affected by

the construction.  Interestingly, why he chose to remain silent when

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the vast area of construction was coming up right next to his property,

is a mystery.  So is it a mystery, why DLF was singled out while no

mention was made of the whole area which was highly constructed as

noticed  in  the  reports.   The  learned  single  Judge  granted  interim

orders  on  4.12.2012  against  progress  of  the  project.

KCZMA/appellant also became active at that stage, asking DLF to

submit a CRZ map of the project site with construction superimposed

on  it  and  addressed  to  the  MoEF  a  letter  dated  29.12.2012  for

necessary action alleging that there was a land reclamation by DLF.

The  CEAC  in  its  124th meeting  held  on  13/14.5.2013  decided  to

consider the environment clearance and noted certain violations by

DLF.  However, since the SEIAA was set up in the meantime vide

Notification dated 19.12.2011, file of the project was transferred to it.

On  31.10.2013,  the  project  was  cleared  by  the  SEIAA  qua

environment clearance but it also decided to issue a show cause notice

to DLF as to why violation proceedings should not be initiated against

it before issuance of EC.  Finally on 11.12.2013, SEIAA issued an

integrated CRZ-cum-environment clearance dated 11.12.2013 to the

project subject to the outcome of the writ proceedings pending before

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the learned single Judge of the Kerala High Court.  We may note here

itself that one of the aspects pointed out by DLF is that this clearance

has  not  been  challenged  in  any  proceedings  nor  were  the  writ

proceedings amended to challenge the same.

13. It  is  the case  of  the  KCZMA/appellant  that  there  were complaints

preferred by other persons with regard to the project of DLF and thus,

in its meeting held on 17.2.2014 it was decided to constitute a three

member  committee  to  inquire  into  the  CRZ status  of  the  project.

Apparently on 30.6.2014, the Chief Secretary submitted a report to

the Chief  Minister  reporting certain violations and a three member

committee  report  was  available  on  21.7.2014  alleging  illegal

reclamation of the land and other violations.  CESS also sought to

change  its  course  on  11.8.2014  alleging  that  there  was  a  natural

stream canal  from the CRZ map submitted  to  the MoEF for  CRZ

clearance and that  some two photographs had been replaced.   The

challenge  laid  to  the  report  by  DLF  by  way  of  writ  petition

No.18483/2014  was  disposed  of  on  19.8.2014  observing  that  the

report of the Chief Secretary dated 30.6.2014 could only be treated as

a piece of information.

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14. The learned single Judge rendered his verdict on 8.12.2014 finding

practically  everything  against  DLF  and  categorised  the  whole

construction as illegal and in violation of law, particularly the CRZ

notification,  and  was  thus  not  capable  of  being  regularised.   The

illegal  structure  was  directed  to  be  demolished.   This  order  was

assailed  in  writ  appeal  No.1987/2014  by  DLF.   A separate  writ

petition  was  also  filed,  being  writ  petition  No.20555/2015,

challenging  the  report  dated  21.7.2014  by  the  three  member

committee  appointed  by  the  KCZMA/appellant.   The  construction

being  complete  and  the  flat  buyers  interest  being  involved,  these

apartment  buyers  also  filed  writ  petition  Nos.2810/2015  and

3375/2015 praying for issuance of occupancy certificates.

15. The Division Bench ultimately by the impugned order while broadly

upholding the findings of the learned single Judge and setting aside

the  order  of  demolition,  directed  regularisation  subject  to

fine/compensation  amount  of  Rs.1  crore.   This  amount  was  to  be

deposited  before  the  District  Collector,  Ernakulam to  be kept  in  a

separate  account  for  being  used  exclusively  for  building  up  the

environment, maintaining ecological balance in the area situated on

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the eastern side of the Chilavannur river, with a further direction to

the District Collector to submit periodic reports before the Court as to

the utilisation of the amount for the activities undertaken, in every six

months.   The  writ  petitions  filed  by  the  prospective  buyers  were

dismissed but without prejudice to get the occupancy certificates for

the building from the local authority subject to the satisfaction of the

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

Stand of KCZMA/Appellant

16. The  KCZMA/appellant  are  before  us  by  appeal  with  Mr.  Shyam

Divan, learned Senior Advocate seeking to vehemently canvas that the

various violations required the building to be demolished or in the

alternative, the fine substantially enhanced.  He took us meticulously

through the development in the case as discussed above with each of

the events to canvas the violations which have taken place.  On the

Court query about the silence of this important authority for such a

long period of time, the only answer available was that it did not have

an enforcement mechanism and is dependent on the Corporation for

the same.   That,  in  our  view, could hardly  be an answer  for  such

inaction  if  there  were  violations.   Enforcement  is  different  from

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detection  of  violations.   There  can hardly  be  any  doubt  about  the

bounden duty of this authority to play a crucial role in preserving the

environment in the coastal area and it cannot wash its hands off by

giving  an  explanation  for  inaction  as  the  alleged  absence  of  an

enforcement force.  Had this authority kept an eye open right from the

beginning  and  played  the  role  which  it  was  required  to  play,  the

situation which has come to pass would not have so occurred and the

identification of the violations, if any, would have been made at the

threshold stage itself.  This did not happen here.

17. The reliance by the learned counsel has been on the subsequent report,

after the horses had bolted from the stable, to allege violations from

the  beginning.   The  case,  which  was  sought  to  be  put  up  and

canvassed, was that no reclamation was permissible since 1991, but

land was actually reclaimed in 2005-06 and 2009-11.  The aspects

pointed out in the subsequent reports including of the natural stream,

as  to  how the  HTL measuring  norms  were  violated  in  coming  to

conclusions, were pointed out.

18. One of the main bedrocks of DLF, of having obtained the integrated

environment/CRZ clearance  granted  by  SEIAA on 11.12.2013  was

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not denied but it was sought to be contended that the clearances ought

to  have  been obtained prior  to  the  commencement  of  construction

which would at the relevant stage have been granted by the MoEF.  In

any  case  SEIAA  ought  to  have  based  its  decisions  on  the

recommendations of the SEAC, which was not done.  The SEAC had

only considered the environment clearance and not the CRZ clearance

for the project.  That file ought not to have been transferred to SEIAA

by the MoEF.

19. Learned counsel also sought to contend that insofar as CRZ status of

the project land and its implications are concerned, the project area in

question included backwater and pokkali fields (filtration ponds) by

referring to various documents, which also show that land reclamation

was undertaken at the project site from 2005 onwards, which was a

prohibited activity.  It was also submitted that the imaginary line to be

drawn  was  cutting  across  a  natural  backwater  canal  and  not  a

manmade drainage canal as alleged by DLF.

20. An issue was also sought to be raised about the FSI and FAR status of

the project as the same had been granted of 1.99 while the Town and

Country Plan Regulation only provided for 1.5.

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21. In the written synopsis filed, it has been stated that some action has

been taken against some erring officials of Cochin Corporation and

the former Chairman of the KCZMA/appellant, and vigilance cases

are pending.  It is admitted that a vigilance case is pending against the

Chief Secretary who addressed the communication dated 10.12.2014,

though not in respect of the project in question.

22. In order to establish that the action was not restricted to the project in

question, actions taken against other violators also sought to be set up.

23. KCZMA/appellant  sub-committee  report  of  31.8.2010  giving  in

principle approval/recommendation to the project and recommending

imposition of fine is stated to be based on CESS report of May, 2005,

which  was  based  on  HTL,  which  was  subsequently  found  on

superimposition, to involve land reclamation and resulted in a three

member committee report dated 21.7.2014.

24. Learned  senior  counsel  also  referred  to  a  catena  of  judgments  to

advance the proposition that in the ‘no development zone’ there could

not be permissions granted and that this Court has frowned upon the

practice  of  regularisation  of  unauthorised  construction  where

environment issues are involved.

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Stand of the Cochin Municipal Corporation:

25. The  Corporation  has  largely  confined  itself  to  the  issue  of  FAR

sanction  of  1.99.   It  is  stated  that  the  maximum  FAR  of  the

Corporation of Cochin is 2.5 as clarified by MoEF.  In the Kerala

Building Rules, 1999, the maximum FAR of 1.5 was extended to 2.5

FAR, which continued till 22.2.2001 when Rule 31 was amended and

maximum  FAR  was  increased  to  3.00  extendable  on  payment  of

additional fee to 4.00.

26. The building permit in question was issued on 22.10.2007, when the

maximum FAR for central city of Kochi was reduced to 2.  It was in

these circumstances that the FAR of 1.99 was made available.

Stand of the State of Kerala:

27. The State of Kerala has more or less supported the stand of KCZMA

but in the course of arguments it does appear that one aspect which

had really troubled it was the directions whereby the Collector was

sought to be made responsible for the management of Rs.1 crore fine

to be deposited as also the feasibility of utilising the same.

Stand of the Ministry of Environment and Forests:

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28. The Ministry of Environment and Forests has indulged in a complete

flip-flop-flip in its affidavit without even explaining the reasons for

the same.  The original affidavit was filed before the High Court on

19.5.2016 by one Dr. S.K. Susarla, Advisor with the Ministry.  The

affidavit  records  that  the  Ministry  was  made  a  party  to  the

proceedings by the orders of the Court in the writ proceedings.  The

affidavit states that based on the recommendations of the KCZMA,

SEIAA, Kerala, it was found that the project came under category ‘B’

and the project proponents adhered to the conditions laid down and

the  construction  is  in  order.   The  relevant  paras  19  &  20  are

reproduced hereinbelow:

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

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

29. In  the  present  proceedings  also  an  affidavit  dated  6.11.2017  is

available, which affirms that SEIAA, Kerala was in place in 2013 and

the project was a category ‘B’ project as per EIA notification of 2006,

the appraisal was to be done at the State level by the SEIAA.  The

Page 20 of 39

averments in para 17 are as under:

“17. It is submitted that SEIAAs/SEACs comprises of members who are  well  qualified  and  have  requisite  expertise  in  various sectors to examine, appraise the projects and recommend them for grant  of  Environmental  Clearance  imposing  all  suitable environmental  conditions  to  ensure  sustainable  environmental management.  The consideration of such projects at SEIAA/SEAC level  is  to  decentralise  the  powers  confined  to  the  Union Government and to streamline and expedite the process of grant of Environmental Clearance to building construction projects in view of the growing demand of housing to all.”

30. On the conclusion of the hearing, when crystallised written synopsis

had to be filed,  an affidavit  is  sought to be slipped in by one Mr.

Ritesh Kumar Singh, Joint Secretary of the MoEF, stating that this

affidavit is in “continuation” of the earlier affidavit dated 6.11.2017

filed on 7.11.2017.  For the first time, it is sought to be now pleaded

that  CRZ  Notification,  1991,  CRZ  Notification,  2011  and  EIA

Notification, 2006 have been violated and that prior clearance under

the Notifications before the commencement of construction activity

was mandatory.  It is also sought to be alleged that reclaimed water

bodies and land falling under CRZ for housing projects is prohibited

under  CRZ  Notification.   The  post  construction  environment

clearance  is  stated  to  have  been granted  to  the  project  by  SEIAA

without appraisal and recommendations of SEAC and in the absence

Page 21 of 39

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

annexures.

31. We fail to appreciate the contradictory stands of the authority and the

endeavour  to  set  up  a  different  case  after  the  conclusion  of  the

hearing.  Such conduct is unacceptable.

DLF’s stand:

32. DLF has sought to emphasise that while an entrepreneur is obliged to

obtain  all  the  requisite  permissions,  there  is  also  a  corresponding

obligation  on  the  Regulatory  Authorities  to  facilitate  informed

decisions and compliances by the entrepreneur.  DLF is stated to have

obtained all the requisite permissions for construction of the site from

various  authorities  including the  Municipal  Authorities.   The  issue

pertains only to the environment clearance and the CRZ on which

aspects there have been varying stands by different  authorities and

also changing stands of the same authority.

33. The allegation of reclamation of land in 2005-2006 and 2009-2011 is

strongly rebutted.  It is pointed out that since there are registered sale

deed documents of land, assuming without admitting, that there is any

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reclamation, DLF had no role to play in the same as the transactions

took place in 2006.  The Revenue Authority would certainly know

what is the nature of the area, i.e., whether it is land or not.  Linked to

this issue, it is pointed out, that the Coastal Regulation Zone Land

Use Map No.34A prepared in 1996, which had been received by DLF

under  RTI  directly  from CESS clearly  mentions  the  nature  of  the

property.  The filtrations ponds are marked as ‘FP’. There is no such

FP marked in the area where DLF has constructed.  The finding by the

Court below is, thus, assailed as contrary to record.

34. The aforesaid fact is sought to be buttressed by a reference to a recital

in the sale deeds where the district, sub-districts, taluk, village, kara,

firka, tenure and survey numbers are all mentioned.  Thus, the land

certainly existed at the time of purchase.  Not only that the sale deed

dated 20.10.2006 mentions the boundary of  the land with building

Nos.CC  29/288  in  Item  No.7  and  29/201  in  item  No.9,  thereby

suggesting that a part of the land had housed two buildings.

35. Insofar as the Google maps images of February, 2005 and December,

2005 are concerned, it is sought to be denied that the dark area in the

images is a water body as is sought to be made out by the KCZMA.

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In  this  behalf  a  reference  has  been  made  to  the  Google  map  of

September, 2002 not suggesting any water body.  The report of the

Institute of Remote Sensing, where a closer study of Google map of

February, 2005, through the process of separate enlargement would

show that the embankment is well protected without any change that

there was a large massof stagnant water in the property, which has

shallow depth as vegetation below the water, could easily be noticed.

This is not stated to have any permanent link with the back water of

the  Chillavannur  canal.   The  Google  map  of  26.12.2005  was  also

enlarged  by  the  Institute  of  Remote  Sensing  and  the  entire

Chillavannur lake is seen to have green patches of Colocasia trees

surviving in low salinity.  The property is stated to have lush and thick

vegetation and coconut trees in the middle, western, and southern side

of  the  property  and  the  Google  map  clearly  distinguishes  the  geo

morphology  of  the  land  which  is  totally  different  from  the

Chillavannur canal and confirms the well marked boundary line with

the water body in the Chillavannur canal.

36. The December, 2012 map is stated to show thick vegetation with no

mark of water body and the coastal line abutting Chillavannur canal is

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well defined and marked.  It is also pointed out that the CESS in its

report  of  May,  2009  published  the  coastal  regulation  zone  status

report for an apartment complex as Vytilla, Cochi and the photograph

of  the  front  page itself  shows that  the land in  question before the

construction in May, 2009 next to Choice Garden is full of coconut

trees thereby suggesting that in May, 2009, it was clearly not a water

body.  Such coconut trees could not have come up overnight as they

have a gestation period of 10-15 years.

37. The development arising from the successive CESS report is sought to

be analysed and it is alleged that Mr. K.V. Thomas was a party to

these reports.  The reports were with KCZMA and, thus, there could

not be any issue of replacement of photographs.  The photograph on

the  front  cover  of  the  report  also  shows  the  coconut  trees  on  the

property.  The CESS report prepared by the same Mr. Thomas and

others  in  2009  marks  the  drain  in  red  colour  and  describes  it  as

inter-tidal zone falling under CRZ-I(ii).  In the 2010 report to which

Mr. Joseph is a party while referring to the HTL, the canal is referred

to as a drainage canal and, thus, the requirement of imaginary line not

to cut across the water body would not be invoked.  In another report

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in  January,  2011,  Mr.  Thomas  gave  recommendations  by  naming

various projects, which had committed CRZ violations on the banks

of  Chillavannur  lake,  which  had  committed  violations  by  either

constructing  on  a  reclaimed  filtration  pond  or  backwater  side  of

authorised buildings and respondent No.1 project was not named in

the same.  Thus, right till February, 2011 at least, it is submitted, that

in  the  opinion of  the KCZMA/appellant,  DLF was stated  to  be  in

compliance of all statutory provisions.

38. DLF draws strength from the fact that only part of the area was found

to be in CRZ-II, municipal authorities granted approvals and that no

statutory provisions in 1991 Notification or of September, 2006, made

prior  CRZ  approval  before  commencement  of  construction

mandatory.  Once KCZMA itself recommended the proposal to MoEF,

it was submitted by respondent No.1 that there was no impediment in

the way of proceeding further with the project and there was really no

occasion for the CESS to revisit the issue.

39. It has been sought to be emphasised by Mr. Kapil Sibal, learned senior

counsel on behalf of DLF that no explanation was sought from DLF

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in respect of the observations of September, 2011.  The 2012 report

was also never put to the DLF.  Why these aspects were not so put is

unexplained.

40. Learned senior counsel sought to emphasise that the churning and the

rigmarole ultimately did produce a clearance of the project at least on

11.12.2013  and  it  was  only  after  construction  was  complete,  the

different aspects were triggered off at the behest of Mr. Antony, who

had  seen  the  whole  project  develop  near  his  property  as  alleged

without raising a finger on the issue over a number years.  The FSI

position stands explained by the Corporation.  Lastly, however, it was

conceded that though the fine was uncalled for, DLF has not sought

overturning  of  the  fine  as  it  did  not  file  an  appeal  against  the

impugned order.

Conclusion:

41. We commenced  this  order  pointing  out  the  sleeping  role  of  the

authorities  which  developed  into  contradictory  claims  by  different

authorities over factual issues and finally even by the same authority,

like MoEF taking contradictory stands, even trying to slip in a further

additional stand after conclusion of hearing.  It is a matter of concern

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to us that authorities have not performed their task with promptitude,

not  realising  the  importance  of  the  role  they  play  including

KCZMA/appellant.

42. We would like to deal with this matter on two planes – one is the

general plane; and the other is in the given facts of the case.

43. It is trite to say that the importance of environment and ecological

balance requires the enforcement of various Regulations, Rules and

enactments  to  be  strictly  followed.   Specialised  bodies  like  the

KCZMA/appellant  have  been  created  to  deal  with  the  CRZ

Regulations for greater sensitivity.  It is, thus, no answer to say that it

does not have an enforcement mechanism and thus, cannot act.

44. The case law, which Mr. Shyam Divan took us through itself brings

forth the importance of compliances.

45. In  Anil  Hoble  v.  Kashinath  Jairam Shetye1,  it  was  held  that  any

illegal structure falling within the ‘No Development Zone’ (200 mtrs.

from the HTL) in a CRZ III area was directed to be demolished and

even  the  permission  granted  by  the  Coastal  Zone  Management

Authority  was  of  no  avail.   Similarly, the  practice  of  regularising

1 (2016) 10 SCC 701

Page 28 of 39

unauthorised constructions effected by erring buildings in violation of

law has not  found approval  from this  Court  and humanitarian and

equitable grounds found no place in the same.  In Union Territory of

Lakshadweep v. Seashells  Beach Resort2, it  has  been observed as

under: “30. The High Court’s order proceeds entirely onhumanitarian and equitable  considerations,  in  the  process  neglecting  equally,  if notmore,important  questions  that  have  an  impact  on  the  future development and management of theLakshadweep Islands. We are not,  therefore,  satisfied  with  the  manner  in  which  the  High Courthas proceeded in the matter.

31.  The  High  Court  obviously  failed  to  appreciate  that equitableconsiderations  were  wholly  misplaced  in  a  situation where  the  very  erection  of  the  building  to  beused  as  a  resort violated  the  CRZ  requirements  or  the  conditions  of  land  use diversion. No onecould in the teeth of those requirements claim equity  or  present  the  administration  with  a  faitaccompli.  The resort  could  not  be  commissioned  under  a  judicial  order  in disregard  of  seriousobjections  that  were  raised  by  the Administration, which objections had to be answered beforeany direction could issue from a writ Court.”

46. To  the  aforesaid  extent  are  also  the  observations  in  Esha  Ekta

Apartments Cooperative Housing Society v. Municipal Corporation

of Mumbai3.

47. In  Piedade  Filomena  Gonsalves  v.  State  of  Goa4,  it  has  been

2 (2012) 6 SCC 136 3 (2013) 5 SCC 257 4 (2004) 3 SCC 445

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observed as under: “5.  It  is  pertinent  to note that  during the pendency of the writ petition, the appellant had moved two applications, one of which is  dated  11.7.1995,  for  the  purpose  of  regularisation  of  the construction in question.  The Goa State Coastal  Committee for Environment,  the  then  competent  body  constituted  a sub-committee which inspected the site and found that the entire construction raised by the appellant fell within 200 metres of HTL and the construction had been carried out on existing sand dunes. The Goa State Coastal Committee for Environment, in its meeting dated 20.10.1995, took a decision inter alia holding that the entire construction  put  up  by  the  appellant  was  in  violation  of  the Coastal Regulation Zone Notification.

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

48. We are of the view that if the allegation of large scale violations by

DLF were to be correct there would be no alternative but to bring

down the structure.  The moot point, however, remains is as to what is

the correct analysis of the factual position in the case.

49. We would also like to emphasise that  there has to be undoubtedly

greater clarity on the processes and a better understanding between

various  authorities  so  that  developers  are  not  left  in  the  lurch  –

violators  have  to  be  punished but  it  cannot  be  that  the  authorities

continue to do a flip-flop-flip putting the large investments at stake in

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

50. We also make it  clear that  in the future,  wherever permissions are

required to come and are to be obtained before commencement  of

construction, it  would be no answer that activity can be carried on

without obtaining the permissions.  Simultaneously, the permissions

itself  are  envisaged  in  a  time  bound  schedule  and  not  through

improvement of cases by authorities running into years.  Thus, from

the inception itself, there should be clarity on what is permissible and

what is not.

51. In the aforesaid conspectus,  if  the present  project  is  seen,  there  is

really  no  question  mark  over  the  various  permissions  to  carry  on

construction having been obtained by DLF.  The land was purchased

through sale deeds and the sale deeds specified the nature of the area.

It would, thus, be no answer to state that even the Revenue authorities

are oblivious to what is the nature of the land.  DLF, thus, purchased

the land legally and obtained requisite permissions including qua the

FAR, which aspect stands explained by the Corporation as to why it is

not 1.50 as alleged by KCZMA/appellant nor 2.5 as is alleged by DLF

but in the given case was taken as 2 and that is why 1.99 FAR was

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permitted  so  that  there  is  no  doubt  about  the  legality  of  the  FAR

granted.   We may  not  delve  further  on  this  aspect  as  the  crucial

question is relating to the environment clearance and the clearance

required for the CRZ area.

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

observations by the CEAC in its 63rd meeting on 16-18.8.2008 for the

project to take CRZ clearance as well while granting environmental

clearance.  Thus, the environmental clearance was also granted and

the aspect which remained was relating to the CRZ area.

53. There are stated to  be notified authorities  numbering seven at  that

stage,  who  would  prepare  reports  for  analysis  by  the

KCZMA/appellant  and  one  such  notified  agency  was  CESS.   The

CESS did give a report in May, 2009 categorically stating that there

was no CRZ-I (i) land in project area or close to it but it was situated

in CRZ-II.  The well developed, constructed area in the large expanse

around the property in question, also stood enumerated in that report.

54. The fault  of DLF was that it  should have stayed its hand till  CRZ

permission  had  also  been  obtained  but  the  fact  remains  that  on

account of delay in the same it was perceived as a deemed permission

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case  –  rightly  or  wrongly.  The  construction  in  between  was  also

stopped  but  the  appellant  itself  decided  to  recommend  the  project

proposal to MoEF on 20.3.2010 on the basis that the narrow canal was

a drainage canal.  If there was any doubt about the same, it should

have been settled at that stage itself.  The sub-committee appointed by

the appellant also categorically observed that the narrow canal was a

drainage  canal  but  recommended  a  fine  being  imposed  for  not

obtaining prior approval/clearance.  Really speaking the matter should

have ended with that, with a quantification of the fine to be imposed.

55. As to  why  after  the  initial  report  of  CESS of  May, 2009,  should

CESS,after  two years  be again asked to  visit  at  the request  of  the

appellant  is  not  really  understood.   In  the  meantime  most  of  the

construction  was  apparently  done.   The  complaints  made  by  Mr.

Antony  started  playing  a  role  from 2012,  a  person  who,  also  for

reasons  best  known to  him,  decided  to  knock  at  the  doors  of  the

authority  and  the  Court  when  most  of  the  project  was  over.

Interestingly CESS, once again, visited based on recommendation of

the appellant in November, 2012 at the same time when Mr. Antony

filed the petition.

56. In our view it is undoubtedly the specialised authorities who have to Page 33 of 39

carry out the task, but with promptitude.  Their lackadaisical attitude

has  permitted  DLF  to  raise  the  issue  of  a  deemed  environment

clearance by virtue of Clause 8(3) of the EIA Notification of 2006,

which  has  already  been  extracted  hereinabove.   While  the

environment  clearance  was  applied  on  27.11.2007,  the  integrated

clearance was granted on 11.12.2013 after six years, while by 2012,

the project stood completed.

57. Insofar  as  the nature of  the area is  concerned,  we have given due

weightage to the revenue records, which are reflected in the sale deeds

executed.  Some of the aspects which have weighed with the Courts

below do not  find favour  with us.   The reason is  that  the alleged

violations have not emerged with clarity.

58. The Coastal Regulation Zone land use map 34A produced before us

by DLF and as explained by Mr. Kapil Sibal, learned senior counsel

shows that wherever filtration ponds existed they were so recorded.

In 1995-96 much prior to the year 2000 no such filtration ponds are

recorded in the area constructed upon.  Therefore, the findings to the

contrary  cannot  be  sustained.   There  could  not  have  been  a

reclamation of the filtration pond by DLF.

59. In the course of arguments, Mr. Shyam Divan, learned senior counsel Page 34 of 39

has sought to rely upon the Google images of  February, 2005 and

December, 2005 to suggest that there has been obviously large scale

reclamation.   On behalf of DLF, Mr. Sibal  has been able to throw

grave doubts over reliance of such Google images for the purposes of

coming to the conclusion that the dark area in the image is a water

body apart from the fact that in the sale deed dated 20.10.2006 it is

not  so  mentioned  as  per  the  revenue  record.   The  Google  images

produced on behalf of DLF show that in September, 2003 there was

no suggestion of a water body.  DLF has also taken the assistance of a

report of the Institute of Remote Sensing in respect of two Google

images  relied  upon  by  the  appellant  to  substantiate  its  case  and

explain that there was a large mass of stagnant water in the property

of shallow depth with vegetation below the water visible.  This water

appears not  to have any permanent  link with the backwater  of  the

Chillannavur  canal.   The  existence  of  the coconut  trees  is  another

aspect which throws doubt on the submissions made on behalf of the

appellant.

60. As noticed above, if the appellant had acted with promptitude at the

relevant time, we are sure that the correct picture would have been

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available whether for or against.

61. On  behalf  of  CESS  also  there  have  been  meanderings  and

contradictions in  the approach,  even though Mr. K.V. Thomas was

party to all of them.  In the context of the drain, in the 2009 report it is

clearly stated to be an inter tidal zone falling under CRZ 1(ii).  The

report has been prepared after inspection.  The HTL from the Choice

Garden building was found cutting the canal, which was labelled as a

drainage  canal  and  thus,  was  not  cutting  a  water  body.  It  is  not

understood how the contradictions arose subsequently in the 2011 and

2012 reports.

62. The approach of MoEF also appears to be strange and a complete

contradiction between what was stated before the High Court, before

us  three  weeks  before  the  conclusion  of  hearing  and  then  the

endeavour to slip in an additional affidavit post conclusion of hearing.

63. The CEAC in 2008 itself had suggested that the CRZ Committee may

examine the proposal which was so done.  This was discussed with

the appellant and further requisite information was also sought.  The

report from the CESS was obtained in May, 2009 and only a part of

the project area was found in CRZ II category.  After going through

all the procedural requirements, the appellant made a recommendation Page 36 of 39

on  31.8.2010  that  the  construction  falls  in  CRZ  II  areas  and  the

narrow  canal  was  not  an  impediment  to  the  construction.   The

appellant itself decided to recommend the proposal to the MoEF.

64. It  is  the own wisdom of the MoEF that  with the establishment of

SEIAA the whole file should be forwarded to it and this was sought to

be justified on the basis of the experts available with SEIAA.  What

weighs with us most is that post transfer of the file on 11.12.2013, the

proposal was cleared by SEIAA, being the final authority, and that has

never been withdrawn or cancelled or challenged.  This clearance was

post  a  show  cause  notice  seeking  explanation  from  DLF  and  on

explanation being offered, was issued.  Now for the authorities to say

otherwise  or  contradict  themselves  would  not  be  fair  to  DLF and

would  cause  grave  uncertainty  if  such  an  approach  was  to  be

permitted.

65. We are, thus, not in agreement with the findings of the Courts below

on the violations alleged against DLF except to the extent that there is

a question mark on the issue of not having obtained prior clearance

and proceeding on the basis of a deemed clearance, which aspect, at

least for the future we have clarified that whatever be the manner in

which Clause 8(3) of Notification of 2006 is worded, it should imply Page 37 of 39

henceforth a  prior  clearance  and necessary clarifications should  be

issued by the concerned authorities in a time bound manner to obviate

such  situations  to  arise  in  the  future.   We feel  that  the  direction

contained in the impugned order to deposit Rs.1 crore (stated to be

already deposited) can be treated as a fine for the said purpose.

66. We are  also  of  the  view  that  the  operative  directions  against  the

Collector of the State Government to monitor and do this task would

be non-workable and it is appropriate that this amount is transferred to

the  KCZMA/appellant  for  purposes  of  better  enforcement  and

development of CRZ area.

67. In conclusion we set aside the findings of the impugned order while

sustaining the fine of Rs.1 crore with the direction for strict adherence

to the norms in future and avoidance of such contradictions by the

authorities.  We also feel it appropriate that in view of the professed

policy to have more single  window clearance,  the methodology of

such processing of  such applications  should  be  endeavoured to  be

simplified  so  that  there  is  less  uncertainty  and better  enforcement.

The same may be done within a period three months from the receipt

of the copy of the order.

68. The appeals are disposed of in the aforesaid terms.  The parties are

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left to bear their own costs.

..........….….…………………….J.     (ROHINTON FALI NARIMAN)

              ...….....…………………………J.         (SANJAY KISHAN KAUL)

New Delhi. January 10, 2018.

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