On the 11th day of June 2021, a Civil Writ Petition was disposed of by the Honourable High Court of Kerala that ruled against the Petitioner. The petition was filed challenging the validity of Environmental Impact Assessment, 2006 rules on the buildings whose construction was started before the issue of rules. The decision came out from the Single Judge Bench of Honourable Justice P.B. Suresh Kumar.
The Petitioner is a joint venture company who was constructing a residential 5 block apartment of 500 flats. The pre-requisite that was fulfilled for the same before September 2006 was to obtain a No Objection Certificate (NOC) from the Gram Panchayat. The construction had commenced and on 14th September 2006, the central government issued the Environmental Impact Assessment Notification of 2006. This imposed a condition of mandatory clearance certificate prior to the construction.
The Petitioner, although had commenced the construction work, applied for the EIA for the sole reason of boosting the confidence of investors. The application made before the State Environmental Impact Assessment Authority (SEIAA) was forwarded to State Level Expert Appraisal Committee (SEAC). But the decision by the afore-mentioned authority was contrary to what was expected by the Petitioner. The application was rejected on the grounds of illegal construction i.e., no obtaining a building permit and hence denied the environmental clearance.
The year 2006 saw the extension of the jurisdiction of Kerala Municipality Building Rules, 1999 to the village where the construction was commenced. The village was then upgraded as a municipality. The Petitioner regularizing the building applied for a building permit and did secure the permit after successful payment of permit fees. With this, the construction resumed again. In the year 2017, the Petitioner again applied for EIA clearance.
This time, the central Appraisal committee, deriving its power from a notification, rejected the application of the Petitioner. Along with rejection, the Petitioner was also declared violating the EIA rules and the committee directed State Pollution Control Authorities to initiate proceedings against the Petitioner.
Arguments for the Petitioner
The Petitioner was represented by Senior Counsel K.P. Dandapani assisted by Advocate Millu Dandapani. The main argument placed before the Honourable Court was that the EIA notification and the rules never applied to the Petitioner’s construction, as the commencement was prior to the notification issued by the central government.
The reliance was placed on the notification issued by the central government themselves which excluded the constructions commenced before the issue of EIA notification. The council also argued that the order of the violation and direction to the state pollution control authorities is per se illegal.
This was on the ground that the construction had all the legal formalities like obtaining the building permit after the Gram Panchayat was upgraded to Municipality. The council also put forth the fact that the similar constructions which did not even have the NOC which had to be in the first place, had secured clearance certificate, but not the Petitioner’s constructions. These were the main contentions put forth by the counsel for the Petitioner.
Arguments by the Respondents
The Respondents were represented by standing counsel for the SEIAA and SEAC, government pleader for the State of Kerala and Advocate G.G. Manoj for the Municipality. The standing counsels for Respondents argued that the vehement claim made by the Petitioner of EIA excluding the project is not acceptable and illegitimate. The fact of construction commenced prior but was not complete before the notification EIA was issued, was stressed upon.
The counsel strongly objected to that claim of Petitioner that similar projects were given clearance, as the counsel stated, it was decided as per the facts and circumstances of the respected projects. The counsel with this argument rested their case.
The Court heard both the counsel for the Petitioner and Respondent. The Court examined the records about the construction i.e., whether the construction was started prior to the EIA notification. But the absence of records was a fact to worry about to the Court. But the court observed that, even when assumed the 2 said blocks had been build prior to the issue, the other blocks would require the clearance certificate. The other contention of the Appraisal committee’s order being illegal was not accepted by the Court.
Subclause III of Clause 8 in EIA notification specifies that after a certain amount of time, the applicant can proceed assuming that the clearance he had sought was either granted or rejected only based on the Appraisal committee report. But the Court observed that in the instant case, there was no report formulated at all on which the Petitioner could cling upon to and hence the contention was rejected.
The Court when examining the next main contention of the EIA not an obligation on his construction, Court observed that the Petitioner had no Locus-Standi to question this as he was wrong in constructing 2 blocks while the application was pending. With this ground being highlighted the Court rejected this contention of the Petitioner.
The Single Judge Bench of the Kerala High Court disposed of the Civil Writ Petition directing the SEIAA and SEAC to consider and decide the pending application of the Petitioner for a final time. It also ordered a stop on the work that was in progress and ordered the construction work to be halted.
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