The Secretary, Kerala State Coastal Management Authority vs Dlf Universal Limited

1.2 If the allegation of large scale violations by DLF were to be correct there would be no alternative but to bring down the structure. 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 instant case. [Paras 48-49][166-B-D]

1.3 It is made 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.[Para 50][166-E]

1.4 In the said conspectus, if the present project is seen, there is really no question mark over the various permissions to 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. The environmental clearance was also granted and the aspect which remained was relating to the CRZ area. The CESS did give a report in May, 2009 categorically stating that there was no CRZI (i) land in project area or close to it but it was situated in CRZII. The well developed, constructed area in the large expanse around the property also stood enumerated in that report.[ Paras 51-53][166-F-G; 167-A-C]

1.5 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. The approach of MoEF appears to be strange and a complete contradiction between what was stated before the High Court, before this Court before the conclusion of hearing and then the endeavour to slip in an additional affidavit post conclusion of hearing.[Paras 54, 62][167-C-E; 169-B-C]

1.6 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. 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.[Para 56][167-G-H; 168-A]

1.7 Insofar as the nature of the area is concerned, due weightage is given 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. The reason is that the alleged violations have not emerged with clarity. [Para 57][168-B]

1.8 The Coastal Regulation Zone land use map 34A produced 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. 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. If the appellant had acted with promptitude at the relevant time, the correct picture would have been available whether for or against. [Paras 58-60][168-C-G]

1.9 The findings of the courts below on the violations alleged against DLF are not accepted 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 it is 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. The direction contained in the impugned order to deposit Rs.1 crore (stated to be deposited) can be treated as a fine for the said purpose. The operative directions against the Collector of the State Government to monitor and do this task would be nonworkable and it is appropriate that this amount is transferred to the KCZMA for purposes of better enforcement and development of CRZ area. [Paras 65-66][169-G-H; 170-A-B]

1.10 The findings of the impugned order is set aside 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. It is 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. [Para 67][170-C]