P.B.Suresh Kumar, J
1. Petitioner is 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 purpose of construction. The petitioner, therefore
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. In Ext.P1 certificate, it was however mentioned by the panchayat that there shall not be any construction within three
meters from the boundaries of the adjacent public roads and that the petitioner shall provide adequate drainage facility for the building. On the strength
of Ext.P1 certificate, the petitioner commenced construction of the first two blocks.
2. 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 also alleged by the
petitioner that EIA Notification has been subsequently clarified to that effect by the Central Government by issuing a circular on 21.11.2006. 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 an application before the State Environment Impact Assessment Authority (SEIAA) for environmental clearance for their project in terms
of the EIA Notification. Ext.P6 is the application preferred by the petitioner in this regard on 31.07.2012.
3. Ext.P6 application was forwarded by the SEIAA to the State Level Expert Appraisal Committee (SEAC). The SEAC took the view that the
petitioner has commenced the construction of the project without obtaining building permit from the local authority and they are therefore not entitled
to the environmental clearance sought for. A recommendation was made by the SEAC in the circumstances for rejection of the application without
prejudice to the right of the petitioner to prefer a fresh application after regularizing the construction. When the matter was taken up by the SEIAA
thereupon, petitioner made Ext.P8 submission pointing out that the construction was on the strength of Ext.P1 certificate issued by the local authority
and the same cannot therefore be considered as unauthorised. It is stated that in the light of Ext.P8 submission, the recommendation made by the
SEAC was not accepted by the SEIAA and the application was consequently remitted to the SEAC for fresh consideration. Thereupon, the SEAC
took the view that the petitioner should have obtained environmental clearance before commencing the construction of the project in terms of the EIA
Notification, and directed the petitioner to file an affidavit to the effect that violation of EIA Notification has occurred and they will not repeat the
same.
4. It is stated by the petitioner that though the question of violation of the EIA Notification does not arise in the case of the petitioner as they have
commenced the construction of the project prior to the EIA Notification, with a view to avoid further legal complications concerning the project, the
petitioner has submitted an affidavit before the SEAC as directed by them with the hope that on filing the same, the application preferred by the
petitioner for environmental clearance would be processed. It is also stated by the petitioner that in the light of the affidavit filed by the petitioner, the
SEAC has decided to conduct a site visit and to verify the authenticity of the various statutory approvals obtained by the petitioner for the project in
the meanwhile. After the site inspection and verification of the authenticity of the statutory approvals obtained by the petitioner, the SEAC took the
view that since the petitioner commenced the construction of the project without obtaining prior environmental clearance, they are to be proceeded
against for having committed violation of the EIA Notification and made a recommendation to that effect to the SEIAA. Pursuant to 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. In addition, the SEIAA has directed the District Collector to
initiate steps for prosecution of the petitioner under Sections 15 and 19 of the Environment (Protection) Act, 1986. Ext.P17 is the order issued by the
Member Secretary of the SEIAA in this regard on 7.9.2015. In terms of Ext.P17, the District Collector, Ernakulam was directed to enforce the said
order. It is seen that no action was taken by the District Collector pursuant to the directions issued by the SEIAA, as the District Collector entertained
a doubt as to his authority to do so under the Environment (Protection) Act, 1986.
5. In the meanwhile, with effect from 06.11.2006, the State Government has extended the provisions of the Kerala Municipality Building Rules, 1999
to Thrikkakkara Grama Panchayat by notification issued under Section 274(1) of the Kerala Panchayat Raj Act, 1994. Later, with effect from
30.11.2010, the Thrikkakkara Grama Panchayat was upgraded as a Municipality. When the Panchayat was upgraded as Municipality, the petitioner
applied to the Municipality for regularization of the construction. On the said application, on 23.12.2014, the Municipality regularized the construction of
the petitioner by issuing Ext.P16 building permit. Despite Ext.P17 order, the petitioner continued the construction of the project on the strength of
Ext.P16 building permit and obtained even occupancy certificates in respect of the first three blocks from the Municipality. The occupancy certificate
in respect of the first block was obtained by the petitioner on 23.12.2014 and the occupancy certificate in respect of the second block was obtained by
the petitioner on 17.02.2017. Similarly, the occupancy certificate in respect of the third block was obtained by the petitioner on 25.09.2018.
6. While so, the Central Government issued a 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. Ext.P23 is the notification issued by the Central Government in this regard. 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, the Expert Appraisal Committee confirmed the case of the petitioner to be one of violation of the EIA Notification and ordered that action
shall be taken against the petitioner by the State Pollution Control Board and that occupancy certificate shall not be issued for the project until the
project is granted environmental clearance. Ext.P24 is the decision taken by the Expert Appraisal Committee at the Central level in this regard in their
meetings held from 19.02.2018 to 21.02.2018. In Ext.P24, it was also ordered that there shall be a Terms of Reference for undertaking the
environment impact assessment and for preparation of environment management plan concerning the project of the petitioner; that the petitioner shall
be required to submit bank guarantee to the State Pollution Control Board for the amount required for remediation plan and natural and community
resource augmentation plan prior to the grant of environment clearance, the quantum of which shall be recommended by the SEAC and finalized by
the SEIAA and that the bank guarantee shall be released only after successful implementation of the environment management plan, followed by
recommendations by SEAC and approval by SEIAA. 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.
7. Pursuant to Ext.P25 notification, though SEAC considered the application of the petitioner for environmental clearance again on 04.12.2018, the
decision thereon was deferred as it found that some more information was required from the petitioner for consideration of the application. Ext.P26
communication was consequently issued to the petitioner by the Administrator of the SEIAA and the petitioner has furnished the information called
for. The application was considered again by the SEAC in their meeting held during the third week of September, 2019. In the said meeting, the
petitioner submitted the environment impact assessment report based on the Terms of Reference approved by the SEAC. In the said meeting, the
SEAC constituted a sub committee for appraisal of the report for environmental clearance and adjourned the matter for the report of the sub
committee. The application was taken up later by the SEAC in its meeting held during the last week of November, 2019. The representatives of the
petitioner did not appear in the said meeting for hearing. The application of the petitioner was consequently adjourned and taken up by the SEAC again
in their meeting held on 24.12.2019. 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, the SEAC decided to recommend the SEIAA to issue stop memo to the petitioner and
also to initiate proceedings for violation of EIA Notification, after affording the petitioner an opportunity of hearing. Later, in the meeting of the SEAC
held on 14.01.2020, the SEAC confirmed the said decision after affording the petitioner an opportunity of hearing.
8. The writ petition was filed immediately thereupon on 10.02.2020, seeking the following reliefs:
i) Issue a writ in the nature of declaration declaring that in view of the fact that the petitioner commenced construction activities based on Ext.P1 NOC, the petitioner
is not required to take Environmental Clearance under the provisions of the EIA Notification, 2006 which was issued on 14th September, 2006,
ii) Issue a writ in the nature of declaration declaring that since the petitioner commenced construction activities based on Ext.P1 No Objection Certificate, the
petitioner cannot be treated as a violator under the provisions of sections 15 and 19 of the EIA Act, 2006 which was notified on 14th September 2006;
iii) Issue a writ in the nature of declaration declaring that since the petitioner submitted Ext.P6 application on 31.7.2012 and no decision was communicated to the
petitioner, within 105 days, as prescribed by clause 8 of the EIA Notification, 2006, the petitioner is deemed to have been granted Environmental Clearance;
iv) pass such other orders as this Hon'ble Court deem fit and proper in the facts and circumstances of the case and
v) award costs.
The case set out by the petitioner in the writ petition is that insofar as they have commenced construction of the project based on Ext.P1 certificate
issued before the EIA notification, they are not required to obtain environmental clearance. The petitioner has also set out a case that since they were
not communicated the decision on Ext.P6 application preferred by them for environmental clearance on 31.07.2012 within 105 days as provided for in
clause 8 of the EIA Notification, they are deemed to have been granted the environmental clearance sought for.
9. During the pendency of the writ petition, the SEIAA has accepted the recommendation made by the SEAC on 14.01.2020 and issued stop memo to
the petitioner and also directed the State Pollution Control Board to initiate action against the petitioner under Section 19 of the Environment
(Protection) Act, 1986. Ext.P30 is the communication issued in this regard by the Administrator of the SEIAA to the petitioner. Pursuant to Ext.P30,
the District Collector addressed to the District Superintendent of Police to enforce the stop memo issued to the petitioner by SEIAA. In the light of
Ext.P30, the petitioner has stopped the construction activities.
10. A statement has been filed in the matter on behalf of the SEIAA and the SEAC by their Standing Counsel.
11. A counter affidavit has been filed by the Secretary of the sixth respondent Municipality in the matter stating, among others, that the petitioner has
commenced the construction after obtaining Ext.P1 certificate; that the requirement for construction of a building in the erstwhile Thrikkakkara Grama
Panchayat prior to the introduction of the Kerala Municipality Building Rules, 1999 was only to obtain a certificate in the nature of Ext.P1 from the
Panchayat and that the petitioner had completed the piling works and started the works of the super structure in respect of two blocks in terms of the
entries in the register maintained by the Municipality as on 22.05.2007. It is also stated in the counter affidavit that in terms of the circular issued by
the Government, building permit is required to be obtained for all buildings, the construction of which was though commenced based on the No-
objection Certificate issued by the erstwhile Panchayat, but not completed before the enforcement of the Kerala Municipality Building Rules, 1999 in
the Panchayat and it is in the light of the said circular, Ext.P16 building permit was issued to the petitioner after collecting the permit fee.
12. In the reply affidavit filed by the petitioner to the statement filed on behalf of the SEIAA and the SEAC, it is stated that the petitioner has sent a
reply to Ext.P17 order issued by the Member Secretary of SEIAA suspending the construction activities undertaken by the petitioner. Likewise, it is
stated in the said reply affidavit that similarly situated builders have been permitted to continue construction without environmental clearance by
SEIAA and it is in such circumstances that they continued the construction despite Ext.P17 order.
13. On 01.10.2020, this court passed following interim order:
1. This writ petition is pending before this court for the last more than six months. The matter is related to environmental clearance required to be obtained by the
petitioner for the construction undertaken by them.
2. The learned Standing Counsel for the State Environmental Impact Assessment Authority submits that the petitioner had submitted two applications. The learned
Senior counsel appearing for the petitioner submits that there are no two applicants; both are in relation to the same project. Any how, it is desirable that the
applications are taken into its logical conclusion within a period of six weeks after notice to the petitioner. The petitioner shall be given an opportunity of hearing
either in person or through electronic medium. The learned senior counsel for the petitioner would point out that the 3rd respondent has given environmental
clearance to many similarly situated projects.
3. The petitioner is at liberty to move the 3rd respondent for any permission to complete the existing work. If such a request is made, the same shall be considered
without any delay.
Post on 17.11.2020.
Pursuant to the said interim order, the SEIAA considered the matter and ordered to inform the petitioner that environmental clearance cannot be
issued before completing the action for violation of the EIA Notification. The decision taken by the SEIAA in this regard during its meeting held during
the 3rd week of October, 2020 is part of the proceedings as Ext.P39. In Ext.P39, the SEIAA has also requested the SEAC and the State Pollution
Control Board to expedite proceedings initiated against the petitioner for violation of the EIA Notification.
14. Heard the learned counsel for the petitioner, the learned Government Pleader, the learned Standing Counsel for the sixth respondent as also the
learned Standing Counsel for respondents 3 and 4.
15. The learned counsel for the petitioner vehemently argued, placing reliance on Ext.P1 certificate, that they have started the construction of the
project long before the EIA Notification and the requirement to obtain prior environmental clearance does not therefore apply to their project. It was
pointed out by the learned counsel that this aspect has been clarified subsequently by the Central Government in terms of Circular F.No.J-
11013/41/2006-1A-II(I) dated 21.11.2006. It was also pointed out by the learned counsel that the issue is covered in favour of the petitioner by the
decision of the Division Bench of this Court in All Kerala River Protection Council v. State of Kerala, 2015 (2) KLT 78. It was submitted by the
learned counsel that the consistent case of the petitioner all throughout was that the petitioner has applied for environmental clearance only for the
comfort of the investors and buyers of residential apartments in the project. It was argued by the learned counsel that the proceedings initiated against
the petitioner for the alleged violation of EIA Notification is therefore, per se illegal and arbitrary. It was also pointed out by the learned counsel that
none of the constructions of similar nature carried out within the limits of the sixth respondent Municipality based on similar No-objection Certificates
issued by the erstwhile Grama Panchayat have obtained environmental clearance in terms of EIA Notification and no action whatsoever has been
initiated in respect of the said constructions. It was also argued by the learned counsel that even assuming that the EIA Notification applies to the
project of the petitioner, they are denied environmental clearance on the incorrect assumption that the constructions are unauthorised insofar as they
have been made without obtaining building permit. It was pointed out that building permit was not insisted at the relevant time in Thrikkakkara Grama
Panchayat as the Kerala Municipality Building Rules, 1999 were not implemented, and the only requirement for construction then was to obtain a No-
objection Certificate from the Panchayat. It was pointed out that the petitioner has not only obtained the No-objection Certificate before the
construction, but also obtained building permit for the project later when the Building Rules were implemented in the Panchayat. It was argued that in
the light of Ext.P16 building permit, the constructions carried out by the petitioner cannot be said to be unauthorised in any manner and there is
therefore absolutely no reason to deny environmental clearance for the project, especially when similar and identical structures were granted
environmental clearance. It was also argued by the learned counsel that at any rate, insofar as the decision on Ext.P6 application preferred by the
petitioner for environmental clearance has not been communicated to the petitioner within 105 days, the petitioner is deemed to have been issued
environmental clearance in terms of clause 8 of the EIA Notification. It was pointed out that in the said circumstances, even if it is found that the
petitioner is not entitled to environmental clearance for the project, proceedings can be initiated only for cancellation of the environmental clearance
and no proceedings whatsoever could be initiated against the petitioner for violation of the EIA Notification.
16. Per contra, the learned Standing Counsel for respondents 3 and 4 submitted that insofar as the petitioner has not completed the construction of
their massive residential project before introduction of EIA Notification, they are bound to comply with the same. It was also pointed out by the
learned Standing Counsel counsel that the requirement in the EIA Notification is to obtain prior environmental clearance and insofar as the petitioner
has commenced the construction of the project without obtaining environmental clearance and continued the construction when the application for
environmental clearance was pending consideration, the statutory authorities cannot be found fault with for having initiated proceedings against the
petitioner for violation of the EIA Notification. It was also pointed out by the learned Standing Counsel that the competent authorities would be
considering the application of the petitioner for environmental clearance after completion of the proceedings initiated against the petitioner for violation
of the EIA Notification.
17. Having bestowed my attention to the contentions advanced by the learned counsel for the parties and having perused the materials on record, it is
seen that the following questions arise for consideration in the matter:
(i) Whether the petitioner was required to obtain environmental clearance for their project in terms of the EIA Notification?
(ii) Whether the petitioner is deemed to have been issued environmental clearance in terms of clause 8 of the EIA Notification? and
(iii) Whether respondents 3 and 4 are justified in initiating proceedings against the petitioner for violation of the EIA Notification?
18. Question (i): As noted, the Kerala Municipality Building Rules, 1999 was implemented in the erstwhile Thrikkakkara Grama Panchayat only with
effect from 06.11.2006. It is admitted by the Secretary of the sixth respondent Municipality in the counter affidavit that the practice prevailing prior to
the implementation of the Kerala Municipality Building Rules, 1999 in the Panchayat was to obtain a certificate in the nature of Ext.P1 from the
Panchayat for construction of buildings. In other words, the commencement of the construction of the project by the petitioner on the strength of
Ext.P1 certificate cannot be said to be illegal. As noted, EIA Notification was issued by the Central Government on 14.09.2006, after about seven
months from the date of issuance of Ext.P1 certificate. There is nothing on record to indicate as to whether the petitioner has in fact commenced the
construction before 14.09.2006. Later, after about a month, the Municipality Building Rules, 1999 was also introduced in the Panchayat, with effect
from 06.11.2006. There is nothing on record also to indicate as to whether the petitioner has commenced construction of the project prior to
06.11.2006. Even assuming that the petitioner has commenced construction prior to 14.9.2006, there is nothing on record to indicate as to the stage at
which the construction had reached at the time when the Kerala Municipality Building Rules, 1999 was implemented in the Panchayat. The only
material available on record in this regard is Ext.R6(1) produced by the Municipality. As indicated, after implementation of the Kerala Municipality
Building Rules, 1999, the erstwhile Panchayat has recorded in a register the stage of the various constructions commenced prior to the implementation
of the Building Rules in the Panchayat. Ext.R6(1) is the relevant page in the said register pertaining to the construction of the petitioner. It is seen
from the counter affidavit filed by the Municipality that the stage of the construction of the petitioner recorded in Ext.R6(1) is the stage of construction
as on 22.5.2007. Ext.R6(1) indicates that as on 22.5.2007, the petitioner has completed only the piling works of the first two blocks. The question
whether the petitioner was required to obtain environmental clearance for their project in terms of the EIA Notification is to be considered in the
aforesaid background.
19. Clause 2 of the EIA Notification reads thus:
Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory
authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in
the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ‘B’ in the said Schedule, before
any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this notification;
(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the
concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
(iii) Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range.
It is clear from the extracted clause of the EIA Notification that the environmental clearance provided for in terms of the said notification for a project
is one to be obtained before commencement of the construction work of the project. It is also clear from the extracted clause that environmental
clearance in terms of the notification is required to be obtained for all new projects listed in the schedule to the notification and also for expansion of
the existing projects, which cross the threshold limits given in the schedule, after the expansion. Therefore, there cannot be any doubt that the question
as to whether environmental clearance is required for a particular project is to be determined, having regard to the fact as to whether the project is
one existing as on the date of the notification. A building project can be said to be existing only if its construction has already been commenced, for
otherwise, the same would be a project in the contemplation of the project proponent, and such a project cannot be said to be existing. In other words,
even in a case where a building permit in terms of the applicable rules has been obtained by the project proponent, environmental clearance is required
for the same if, the construction work of the project has not commenced as on the date of the EIA Notification. The said view has been taken by this
court in Kent Constructions Private Ltd. v. Corporation of Kochi, 2013 SCC Online Ker 21912.
20. Reverting to the facts, as noted, the materials on record are not sufficient to render a finding as to whether the petitioner has commenced the
construction of the project before 14.09.2006, the date on which the EIA Notification was issued. Ext.R6(1) would indicate only the stage of
construction as on 22.05.2007. As noted, Ext.R6(1) indicates that the petitioner has only completed the piling work of the first two blocks and started
the superstructure work of the said two blocks as on the said date. The pointed question is as to whether the petitioner could be relieved of the
obligation to obtain environmental clearance for the project on account of the said construction. Though the petitioner recites in the writ petition that
they are not obliged to obtain environmental clearance for the project as they have commenced the construction of the project before the EIA
Notification and that they have applied for environmental clearance with a view to comfort the investors and buyers of the apartments in the complex,
the case put forth by the petitioner in Ext.P8 submission made before the SEIAA was that they have completed the construction of the first two
blocks for which environmental clearance was not required and that they propose to construct the remaining three blocks with a built up area of
33,916 square meters, for which they need environmental clearance before commencement of the construction. Paragraphs 6 and 9 of Ext.P8
submission read thus:
“6. That, we have started the construction and substantial work was completed on 14/09/2006 for tower 1 & tower 2. There are about 240 apartments in these two
towers and are ready for occupancy. Majority of these apartments are sold out and hence a third party is also created. No Environmental Clearance is required for
these two towers.
xxx
9. That, currently, we propose to start construction of the remaining 3 towers with a built-up area 33,916 sq.m. and for which we need prior environmental clearance
before the start of construction.
In terms of the EIA Notification, environmental clearance is required for construction of projects involving built up area exceeding 20,000 square
meters. In other words, even if it is found that the petitioner was not required to obtain environmental clearance for the first two blocks of the project
as claimed by them in Ext.P8 submission, the construction of which is stated to have begun before the EIA Notification, environmental clearance was
certainly required for the remaining three towers proposed by the petitioner during the year 2012 when they made Ext.P8 submission. I take this view
also for the reason that in terms of the EIA Notification, environmental clearance is required even for expansion of the existing projects which would
cross the threshold limits given in the schedule after the expansion.
21. The circular of the Central Government referred to by the learned counsel for the petitioner dated 21.11.2006 provides that EIA Notification does
not apply to projects for which Consent to Establish under the Water (Prevention and Control of Pollution) Act, 1974 or Air (Prevention and Control of
Pollution) Act, 1981 was obtained from the State Pollution Control Board. The petitioner has no case that they have obtained consent to establish the
project from the State Pollution Control Board in terms of the Water (Prevention and Control of Pollution) Act, 1974 or Air (Prevention and Control of
Pollution Act) 1981. The circular aforesaid, in the circumstances, has no application. In All Kerala River Protection Council, this court held that EIA
Notification does not apply to granite quarries covered by existing quarrying leases in terms of the Kerala Minor Mineral Concession Rules as on the
date of the notification. The said decision, according to me, cannot have any application to the case of the petitioner. The case of the petitioner that
environmental clearance is not required for their project, in the circumstances, is liable to be rejected and I do so.
Question (i) is answered accordingly.
22. Question (ii) : Clause 8 of the EIA Notification reads thus:
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 Environment
Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below.
(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. In
cases where it disagrees with the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, the regulatory authority
shall request reconsideration by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned within forty five days of the receipt of the
recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned while stating the reasons for the disagreement. An
intimation of this decision shall be simultaneously conveyed to the applicant. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned,
in turn, shall consider the observations of the regulatory authority and furnish its views on the same within a further period of sixty days. The decision of the
regulatory authority after considering the views of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be final and conveyed
to the applicant by the regulatory authority concerned within the next thirty days.
(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.
(iv) On expiry of the period specified for decision by the regulatory authority under paragraph (i) and (ii) above, as applicable, the decision of the regulatory
authority, and the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall be public documents.
(v) Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of projects or
activities, or screening, or scoping, or appraisal, or decision by the regulatory authority concerned, unless any of these is sequentially dependent on such clearance
either due to a requirement of law, or for necessary technical reasons.
(vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the
application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or
cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the
applicant, and following the principles of natural justice.
As noted, sub clause (i) of clause 8 provides that the regulatory authority for grant of environmental clearance shall convey its decision on the
application for prior environmental clearance to the applicant within 45 days of the receipt of the recommendations of the Expert Appraisal Committee
concerned or within 105 days of the receipt of the final Environment Impact Assessment Report, and where environment impact assessment is not
required, within 105 days of the receipt of the complete application with requisite documents, except as provided in the succeeding sub clauses of the
said clause. Sub clause (iii) of clause 8 provides that in the event that the decision of the regulatory authority is not communicated to the applicant
within the period specified in sub clause (i), the applicant may proceed as if environmental clearance sought for has been granted or denied by the
regulatory authority in terms of the final recommendations of the Expert Appraisal Committee concerned. It is placing reliance on sub clause (iii) of
clause 8 that the petitioner contends that insofar as the application for environmental clearance preferred by the petitioner has not been disposed of
within 105 days of the receipt of the same, the petitioner is deemed to have been granted environmental clearance.
23. I am unable to accept the aforesaid contention of the petitioner. Sub clause (iii) of clause 8 of the EIA Notification would apply only in a case
where the Expert Appraisal Committee has made its final recommendation either to grant or to reject the environmental clearance sought by the
petitioner. The fiction created under sub clause (iii) is not that the application made by the project proponent is deemed to have been granted, if a
decision is not communicated on the application. On the other hand, the fiction is that the recommendations of the Expert Appraisal Committee, after
scoping and due appraisal, whether approving or rejecting the proposal, are to be treated as the decision of the Regulatory Authority. In the instant
case, the Expert Appraisal Committee has not submitted their final recommendations to the Regulatory Authority at all. The petitioner cannot,
therefore, be heard to contend that they are deemed to have been issued environmental clearance for their project in terms of clause 8 of the EIA
Notification.
24. Question (iii):- I have found, while considering question (I), that the petitioner was obliged to obtain prior environmental clearance for their project
in terms of the EIA Notification. As noted, the petitioner has applied for environmental clearance for the project and was pursuing the same right from
the year 2012. The recitals in Ext.P8 submission made by the petitioner before the SEIAA as extracted in paragraph 20 above would indicate beyond
doubt that the petitioner was aware of the fact that they are bound to obtain prior environmental clearance for their project. The petitioner has not
disputed the fact that they have completed construction of the third block of the project and also completed a substantial portion of the fourth block of
the project, without obtaining prior environmental clearance, that too, during the pendency of the application for environmental clearance and ignoring
Ext P17 order of the SEIAA. In the circumstances, SEIAA cannot be blamed for having initiated steps against the petitioner for violation of the EIA
Notification. Question (iii) is answered accordingly.
25. As noted, though this Court passed an interim order on 1.10.2020 directing the SEIAA to take up the application preferred by the petitioner for
environmental clearance to its logical end, the SEIAA has taken the stand that environmental clearance can be issued after the conclusion of the
proceedings initiated against the petitioner for violation of the EIA Notification. It is seen that the action provided for in the Environment (Protection)
Act, 1986 for violation of EIA Notification is prosecution under Section 15 of the said statute. Though the SEIAA has issued directions to the State
Pollution Control Board to initiate steps for prosecuting the petitioner, there is nothing on record to indicate that any action has been taken by the State
Pollution Control Board in this direction. Be that as it may, even if steps have been taken towards this end, there is no doubt that the prosecution would
be a time-consuming procedure. Should the partly completed project remain as it is, till the culmination of the prosecution against the petitioner is the
remaining point to be addressed, though the petitioner has not addressed any argument on this aspect. According to me, the stand of the SEIAA that
the partly completed project should remain as it is, till the culmination of the prosecution against the petitioner is unjustified, for the same would not
only adversely affect the interests of the buyers of the apartments in the project, but also result in wastage of resources.
In the circumstances, the writ petition is disposed directing respondents 3 and 4 to dispose of finally the application of the petitioner for environmental
clearance, as directed in Ext.P24 decision of the Expert Appraisal Committee at the Central level, in accordance with the law, having regard to the
present stage of construction, as expeditiously as possible, without waiting for the culmination of the proceedings contemplated against the petitioner
for violation of the EIA notification. It is made clear that the petitioner will not be entitled to resume the work of the project before the direction
aforesaid is complied with.
