GREEN VISTAS INFRASTRUCTURE PROJECTS Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner in the writ petition is the review petitioner. They are a joint venture constructing a residential complex within the limits of the sixth respondent Municipality. When the petitioner proposed to develop the lands belonging to them for the said purpose during early 2006, the Kerala Municipality Building Rules, 1999, was not implemented in Thrikkakkara Grama Panchayat, which was later upgraded as the sixth respondent Municipality. The proposal of the petitioner was for construction of 500 residential apartments in 5 blocks. The practice prevailing then in Thrikkakkara Grama Panchayat for construction of buildings in the nature of one proposed by the petitioner was to obtain a No-objection Certificate from the Panchayat for the said purpose. The petitioner, in the circumstances, obtained Ext.P1 Certificate from Thrikkakkara Grama Panchayat on 04.02.2006 to the effect that permission of the Panchayat is not necessary for the construction proposed by them. On the strength of Ext.P1 Certificate, the petitioner commenced the construction of the first two blocks of the project. While the construction of the first two blocks was proceeding, on 14.09.2006, the Central Government issued Environmental Impact Assessment Notification, 2006 (EIA Notification) under the Environment (Protection) Act, 1986. As per the EIA Notification, prior environmental clearance is required for building projects involving built up area exceeding 20,000 square meters. According to the petitioner, the requirement in the EIA Notification does not apply to their project since they have commenced the construction of the project before 14.09.2006. It is stated that nevertheless, with a view to give confidence to the investors and potential buyers of residential apartments in the project, the petitioner preferred Ext.P6 application on 31.07.2012 in terms of the EIA Notification before the State Environment Impact Assessment Authority (SEIAA) for environmental clearance for their project. On Ext.P6 application, the State Level Expert Appraisal Committee (SEAC) took the view that the petitioner should have obtained environmental clearance before commencing the construction and they are, therefore, to be proceeded against for having committed violation of the EIA Notification and made a recommendation to that effect to the SEIAA. On the said recommendation, the SEIAA has decided to proceed against the petitioner for having violated the EIA Notification and to suspend the construction activities undertaken by the petitioner till environmental clearance is issued for the project.

(2.) While so, the Central Government issued Ext.P23 notification under the Environment (Protection) Act, 1986 on 14.03.2017, providing that where projects or activities requiring prior environmental clearance in terms of the EIA Notification are brought for environmental clearance after commencement of the construction work, appraisal of the same for grant of environmental clearance shall be considered only by the Expert Appraisal Committee at the central level. It is stated that though the petitioner was not obliged to obtain environmental clearance for the project in terms of the EIA Notification, with a view to resolve the issues relating to the project, they preferred a fresh application for environmental clearance before the Expert Appraisal Committee at the Central level in terms of Ext.P23 notification. On the said application, as per Ext.P24 order, the Expert Appraisal Committee confirmed the case of the petitioner to be one of violation of the EIA Notification and directed that action shall be taken against the petitioner. In Ext.P24, it was also ordered that there shall be an environmental impact assessment and an environment management plan for the project of the petitioner and the environmental clearance shall be granted for the project only after successful implementation of the environment management plan. Ext.P23 notification, in terms of which Ext.P24 order was passed, was subsequently amended on 08.03.2018 by Ext.P25 notification issued by the Central Government, as per which the SEAC was authorised to deal with the application submitted by the petitioner for environmental clearance again.

(3.) Pursuant to Ext.P25 notification, the SEAC took up the application of the petitioner for environmental clearance for decision. In the meanwhile, the sub committee constituted by the SEAC reported that the petitioner continued the construction while the application for environmental clearance was pending and completed almost even the fourth block and started the land development for the fifth block. In the light of the said report, on 14.01.2020, the SEAC decided to recommend the SEIAA to issue stop memo to the petitioner and also to initiate proceedings against the petitioner for violation of EIA Notification and the said recommendation of the SEAC has been accepted by the SEIAA.