Green Vistas Infrastructure Projects v. Union of India and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR. A.J. DESAI & THE HONOURABLE MR. JUSTICE V.G. ARUN FRIDAY, THE 6TH DAY OF OCTOBER, 2023 / 14TH ASWINA, 1945 WA NO. 617 OF 2023 [AGAINST THE ORDER DATED 20-10-2021 IN RP NO. 469/2021 IN W.P(C) NO.3870/2020 AND THE JUDGMENT DATED 11.06.2021 IN W.P(C) NO.3870/2020 OF THIS HON'BLE COURT.] ## **- APPELLANT/PETITIONER/PETITIONER:** GREEN VISTAS INFRASTRUCTURE PROJECTS, HAVING ITS ADDRESS AT: G-159, PANAMPILLY NAGAR, ERNAKULAM - 682036. REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. SAURABH GULECHHA. BY ADVS. SRI. SANTHOSH MATHEW SRI. ARUN THOMAS SMT. KARTHIKA MARIA SRI. ANIL SEBASTIAN PULICKEL SRI. ABI BENNY AREECKAL SRI. MATHEW NEVIN THOMAS SRI. KURIAN ANTONY MATHEW SMT. DIANA LAURANCE PAUL SMT. ANEETA MARY SAJI SMT. MANASA BENNY GEORGE ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** 1 UNION OF INDIA, REPRESENTED BY MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE, CGO COMPLEX, LODHI ROAD NEW DELHI - 110003. REPRESENTED BY ITS SECRETARY. 2 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. W.A. 617/2023 -:2:- - 3 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA), KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR THAMPANOOR, THIRUVANANTHAPURAM - 695001. REPRESENTED BY ITS MEMBER SECRETARY. - 4 STATE ENVIRONMENT ASSESSMENT COMMITTEE (SEAC), KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR, THIRUVANANTHAPURAM - 695001. REPRESENTED BY ITS SECRETARY. - 5 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, KOCHI, ERNAKULAM-682030. - 6 THRIKKAKARA MUNICIPALITY KAKKANAD P.O, KOCHI - 682030. REPRESENTED BY ITS SECRETARY. - 7 THE KERALA STATE REMOTE SENSING AND ENVIRONMENTAL CENTRE VIKAS BHAVAN, C-BLOCK THIRUVANANTHAPURAM, KERALA-PIN - 695033, REPRESENTED BY ITS DIRECTOR. - 8 THE VILLAGE OFFICER, VILLAGE OFFICE, THRIKKAKARA KAKKANAD, KOCHI, PIN - 682030. R1 BY ADVS. SRI. S. MANU, DSGI (B/O) R2, R5, R7 & R8 BY SENIOR GOVT. PLEADER SRI. K. P. HARISH, R3 & R4 ADV. SRI. M. P. SREEKRISHNAN, SC FOR SEIAA, R6 BY ADV. SRI. S. JAMAL, SC FOR THRIKKAKARA MUNICIPALITY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-09-2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: W.A. 617/2023 -:3:- ## **J U D G M E N T** ## **A.J. Desai, CJ** The challenge in this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958 is to the judgment dated 11.06.2021 in W.P.(C) No. 3870 of 2020 as well as order dated 20.10.2021 in R.P.No.469 of 2021. 2. By judgment dated 11.06.2021, the learned single Judge has disposed of the writ petition directing the Member Secretary of the State Environmental Impact Assessment Authority (SEIAA) and Secretary of the State Environment Assessment Committee (SEAC), Thiruvananthapuram, respondents 3 and 4, to dispose of finally the application for environmental clearance, as directed in Exhibit-P24 decision of the Expert Appraisal Committee of the Central Level, in accordance with the law, having regard to the present stage of construction, as expeditiously as possible. It is also ordered in W.A. 617/2023 -:4:- the said judgment that the petitioner will only be entitled to resume the work after the direction is complied with. 3. By order dated 20.10.2021, the learned single Judge has dismissed the review application seeking a declaration that the original petitioner does not require an environmental clearance certificate under the Environmental Impact Assessment Notification, 2006, to continue construction work of the property comprised in Re-survey No. 359/3 in Thengola Kara, Kakkanad Village of Thrikkakara Municipality which was the then Thrikkakara Panchayat. 4. The case put forward by the writ petitioner/appellant (hereinafter referred to as ‘the petitioner’) is that the petitioner, in a joint venture with one Smt. Sheena Sunny, owner of 330 cents of land in Re-survey No.359/3 in Thengola Kara in Kakkanad Village; Sri. Vijayakumar Surana, owner of 45 cents of land in Re-survey No. 359/3 in Kakkanad Village, and 14 W.A. 617/2023 -:5:- others intended to put up residential towers on the said property. Since the land was within the then Thrikkakara Grama Panchayat and as required under the provisions of the Kerala Building Rules, 1984, the petitioner applied for permission to carry out the construction work. After considering the application, the then Panchayat issued No Objection Certificate dated 04.02.2006 (Exhibit-P1), stating that since the Kerala Building Rules, 1984 have not been enforced within the Panchayat, approval of the building plan is not required. Hence, permission was granted subject to the condition that three metres should be left from the boundary adjacent to PWD roads and earmarked Panchayat roads, and adequate drainage facilities should be provided to the building. It is the case of the petitioner that having received the No Objection Certificate, the company started to carry out the construction activities. W.A. 617/2023 -:6:- 5. The Central Government, exercising its powers under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, issued a notification dated 14.09.2006, imposing certain restrictions and prohibitions on new projects or activities, or on the expansion or modernisation of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification, being undertaken in any part of India. 6. It is the further case of the petitioner that as per clause (2) of the EIA notification, there is no need to obtain Environmental Impact Assessment Certificate (hereinafter referred to as ‘EIA Certificate’) since the then Panchayat had granted Exhibit P1 certificate on 04.02.2006 and construction activities had begun before issuance of the EIA notification. 7. Petitioner would state that, in addition to Exhibit P1 certificate, the company obtained Exhibit P2 certificate from W.A. 617/2023 -:7:- the Commandant General of Fire & Rescue Department dated 17.02.2009 for the construction of the residential building. Further, the Southern Naval Command had issued Exhibit P3 NOC dated 15.12.2014 for constructing the high-rise building based on Exhibit P1. The Airport Authority of India also granted Exhibit P4 NOC for the project's construction on 27.02.2016, which was valid till 26.02.2021. 8. Meanwhile, vide notification dated 06.11.2006, the Government of Kerala, invoking its power under Section 274(i) of the Kerala Panchayat Raj Act, 1994, extended certain provisions of the Kerala Municipality Act, 1994, and all the provisions of the Kerala Municipal Building Rules, 1999 were made applicable to the then Thrikkakara Grama Panchayat, where the land in question is located. 9. In the year 2011, the State of Kerala, in exercise of the powers under Section 3 of the Environment (Protection) Act, W.A. 617/2023 -:8:- 1986, constituted the State-Level Environment Impact Assessment Authority (hereinafter referred to as ‘SEIAA’) vide notification dated 03.11.2011. 10. The case further put forward by the petitioner is that even though there was no statutory requirement and notification dated 14.09.2006 is not made applicable to it, to give confidence to the investors and potential buyers, an application for environmental clearance was submitted on 31.07.2012 (Exhibit P6) in Form-IA to the SEIAA. The said application was forwarded to respondent No.4 - State Level Expert Appraisal Committee (hereinafter referred to as ‘SEAC’) for appraisal. The SEAC, in its 7[th] meeting held on 01.09.2012, recorded the finding that it is a case of violation of the provisions in EIA notification since the petitioner has put up construction of 2 blocks out of the total five blocks consisting of Ground + 14 floors and 120 units. W.A. 617/2023 -:9:- 11. The petitioner thereafter sent a communication to SEIAA dated 10.09.2012 (Exhibit-P8) clarifying certain aspects regarding the construction put up on the land before 14.09.2006 and requesting that no insistence has been made for getting the environmental clearance certificate. Along with the communication, the petitioner has produced copies of the NOC and approved plan dated 04.02.2006. Petitioner has also stated that the Ministry of Environment and Forest vide circular dated 21.11.2006 has clarified that no prior environmental clearance is required when NOC has been issued by the State Government. 12. Based on the clarification made by the petitioner, the matter was referred back to the SEAC. SEAC, in its meeting held on 02.03.2013, considered the matter and observed that since the petitioner had already started the construction work, without an environmental clearance certificate, it was a clear W.A. 617/2023 -:10:- case of violation of the same. The petitioner filed an affidavit on 14.08.2013 (Exhibit P12) explaining the reasons for the nonrequirement of the said certificate. A meeting of the SEAC was again held on the 9[th] and 10 of September 2013, asking the petitioner to supply the documents regarding the ownership of the land, statutory approvals for the blocks already constructed, the present status of the construction, and the details of Floor Area Ratio (FAR) to the said authority. 13. By communication dated 23.07.2014 (Exhibit P15), the petitioner had reiterated its contention before the SEIAA that when the project had commenced the construction work, there was no need to obtain an environmental clearance since the petitioner is deemed to have been granted environmental clearance from 27.11.2012. 14. In 2014, the petitioner applied for regularisation and reduction of the permissible FAR. On 10.12.2014, the petitioner W.A. 617/2023 -:11:- was directed to submit a regularisation fee of Rs.16,42,000/-, and for additional FAR, called upon to pay Rs.1,46,04,000/-. The said amount of Rs.1,62,46,000/- had been paid by the petitioner on 23.12.2014. On payment of the fees, the Secretary of Thrikkakara Municipality issued a revised building permit on 23.12.2014 (Exhibit P16). Accordingly, the building permit was issued by the Thrikkakara Municipality, relying upon Exhibit P1 certificate dated 04.02.2006 issued by it. 15. Though the authorities were properly explained about the non-applicability of the notification dated 14.09.2006, at the instance of the respondents, the District Collector was directed to initiate prosecution under Section 19 r/w. Section 15 of the Environment (Protection) Act, 1986. 16. It is the case of the petitioner that the company was compelled to file the writ petition praying for a declaration that, in view of the fact that the petitioner had commenced the W.A. 617/2023 -:12:- construction activities based on Exhibit P1 NOC, it is not required to obtain environmental clearance under the provisions of EIA notification dated 14.09.2006. 17. It is the further case of the petitioner that to support the contention that the project commenced the work before 14.09.2006, documents like satellite images of the land, which have been produced by respondent No.6 along with the report, would make it amply clear that no construction work was carried out as on 08.12.2005. However, the satellite data/ imagery suggests that on 11.12.2006, some piling works had taken place in the said property. 18. Petitioner has also relied on the subsequent images produced by the 6[th] respondent Municipality along with the report on land use change, which were collected from the data available. The images suggest that on 06.01.2008, some constructions were put up in the property, whereas imagery W.A. 617/2023 -:13:- dated 18.03.2020 clearly suggests that more buildings (towers) have come up on the land. The petitioner would state that even the register of the year 2007, containing the details of the buildings under construction maintained by the Panchayat, discloses that earth movement had started and piling was completed, which would show that the construction has commenced. Thus, it is established from the record maintained by Thrikkakara Municipality that piling work has been completed and, therefore, there is no need to avail environmental clearance certificate. 19. On the other hand, it is the case of the contesting respondents, i.e., respondents 2, 3 and 4, that the petitioner has miserably failed in establishing that before the issuance of EIA notification dated 14.09.2006, the petitioner had ever put up any construction in the land in question. W.A. 617/2023 -:14:- 20. It is the case of the contesting respondents that, for the first time, the petitioner had applied for environmental clearance on 13.08.2012 for the proposed housing project in Re-survey No. 359/3 at Kakkanad Village, Thrikkakara Municipality, with 500 apartments consisting of clubhouse, first aid room, convenient shops and swimming pool. The said project is for constructing five residential blocks, of which the construction of two blocks has already been completed. Initially, the proposal was considered by SEAC in its 7[th] meeting held on 1[st] September, 2012 and found that it was a case of violation of the provisions in the EIA notification dated 14.09.2006 since the petitioner had constructed two blocks out of five blocks without obtaining environmental clearance and, therefore, clarification was sought in that regard. 21. In response to the above, the petitioner stated that it had put up the construction in February, 2006, prior to the EIA W.A. 617/2023 -:15:- notification and after getting NOC from the then Thrikkakara Panchayat. The petitioner also stated that out of ignorance, they have not so far applied for environmental clearance. 22. After examining several documents in various meetings, SEAC recorded a finding in the 19[th] meeting held on the 9[th] and 10 of September, 2013, that the petitioner had started the construction without obtaining prior environmental clearance and, thus, has violated the provisions of EIA notification dated 14.09.2006. Apart from that, various illegalities have been found out when the site was visited by the authorities concerned. 23. Thereafter, the case was referred to the SEIAA in its 27[th] meeting held on 11.03.2014, and SEIAA accepted the recommendations of the SEAC for initiating proceedings for violation. Accordingly, a notice was issued asking the petitioner to stop the further construction. W.A. 617/2023 -:16:- 24. It is the case of the respondents that the petitioner has failed to establish that any type of construction work, including earth movement and piling work, had been carried out on or before 14.09.2006. The report produced by the 6[th] respondent Municipality does not disclose the situation as of 14.09.2006, whereas the register maintained by the respondent Municipality shows the stage of construction of the building as of 22.05.2007, and therefore, it is to be discarded. 25. The learned single Judge, after considering the rival submissions and documents produced on record, refused to accept the contention of the petitioner that it had started the construction of the building before 14.09.2009 and disposed of the writ petition by the impugned judgment, as stated supra. 26. Seeking review of the judgment dated 11.06.2021 in W.P.(C) No.3870 of 2020, the writ petitioner had filed R.P. No.469 of 2021, inter alia, on the ground that the learned single W.A. 617/2023 -:17:- Judge while disposing of the writ petition has not appreciated certain materials which were placed before the writ court. Having heard the learned counsel on both sides and upon perusal of the report of the 7[th] respondent – Kerala State Remote Sensing and Environmental Centre dated 17.09.2020, the learned single Judge by order dated 20.10.2021 dismissed the review petition. Hence, this appeal. 27. Mr. Santhosh Mathew, learned counsel for the appellant, would submit that the respondent authorities, as well as the learned single Judge, have committed error in appreciating the case put forward by the petitioner. He would submit that it is not in dispute that when the construction of the multi-storeyed apartment in the property in question was started, i.e., in the year 2006, the same was part of Thrikkakara Grama Panchayat and the Kerala Municipality Building Rules, 1999 were not made applicable. W.A. 617/2023 -:18:- 28. The petitioner made a proposal to the Panchayat for the construction of 500 residential apartments in five blocks, including clubhouse, first aid room, convenient shops and swimming pool. The application was accepted by the then Thrikkakara Panchayat, and Exhibit P1 certificate dated 4.2.2006 was issued stating that the Kerala Building Rules, 1984, having not been enforced within the Thrikkakara Grama Panchayat, permission for construction is not necessary on condition that 3 metres distance should be left from the boundary adjacent to PWD and earmarked Panchayat roads and also adequate drainage facilities shall be provided. After receipt of the same, the appellant started construction. 29. Learned Advocate would further submit that for putting up five blocks in the multi-storeyed apartments having 500 residential accommodations, removal of the earth is the first step required to be undertaken. The five blocks W.A. 617/2023 -:19:- proposed to be constructed are multi-storeyed; excavation and removal of the earth take much more time. According to the learned Advocate, the piling work, excavation, and removal of earth is part of the construction, and therefore, when the construction activities had commenced before the issuance of EIA notification dated 14.09.2006, there is no need to obtain an EIA certificate from the respondent authority. 30. He would also submit that the appellant had, in the interest of the residents of the two towers and to give confidence to the investors and potential buyers for the other three towers, submitted an application for the entire project on 31[st] July, 2012. He would submit that though there was no need to apply for EIA certificate, subsequent to the filing of the application on 31.07.2012, a communication dated 10.09.2012 was sent by the petitioner to SEIAA, clarifying this aspect. W.A. 617/2023 -:20:- 31. By taking us through the said communication dated 10.09.2012 (Exhibit P8), the learned Advocate for the appellant would submit that the appellant had started the construction work and substantial work had been completed on 14.09.2006 for towers 1 and 2, having around 240 apartments, which are ready to be occupied. Instead of examining this aspect and verifying the same, the authority has committed error in not believing the statement of the appellant that the construction work had commenced before 14.09.2006. 32. Learned Advocate would further submit that, as per the direction issued by the learned single Judge on 12.08.2020, the 6[th] respondent Municipality filed a memo on 21.08.2020 along with the report (Annexure K), which was prepared by the 7[th] respondent – Kerala State Remote Sensing and Environmental Centre. He would submit that the report includes satellite imageries taken on various stages with W.A. 617/2023 -:21:- respect to the land in question, i.e., Re-survey No.359/3. By taking us through Annexure K report, he would submit that the first imagery dated 08.12.2005 suggests that the land in question is open land and no work was scheduled to be started, whereas imagery dated 11.12.2006 shows that some piling works were carried out in the said property. Imagery dated 06.01.2008 suggests that more construction activities were observed towards the north and southern parts with soil exposure/construction materials. Whereas imagery 18.03.2020 shows more buildings/structures towards the south and north parts. He would also submit that the appellant had started the construction work in 2006 itself. Therefore, the authority concerned and the learned single Judge ought to have considered this relevant material and allowed the writ petition as prayed for. W.A. 617/2023 -:22:- 33. By taking us through the register of buildings under construction/land development on the date of implementation of the building rules, produced by the 6[th] respondent along with the counter affidavit dated 01.07.2020, the learned Advocate for the appellant would submit that the said register discloses that in the column “Stage of Construction”, it is stated that on or before 25.05.2007, the earth removal had started and piling work was completed. He would also submit that in the column “Action if any taken in respect of the Building under Construction”, it is stated that piling completed, and construction commenced. Thus, the respondent Municipality and the learned single Judge have made a mistake in appreciating the evidence produced on record before and during the pendency of the writ petition. 34. By taking us through clause (ii) of the EIA notification dated 14.09.2006 issued by the Central Government, the W.A. 617/2023 -:23:- learned Advocate for the appellant would submit that it is made clear in the said notification that the provisions of the EIA notification would not be applicable if the construction had commenced and would apply only to new projects or activities which may be carried out subsequent to the issuance of the said notification. He, therefore, would submit that this is a clear case where the appellant was able to establish that the construction work in the property in question had already commenced before the issuance of the EIA notification, 2006. Hence, there is no need of having EIA certificate, as contended by the contesting respondents. Learned Advocate would also submit that the mere submission of an application for EIA certificate for the entire project would not come in the way of the appellant raising legal contentions since the said application was made in good faith. W.A. 617/2023 -:24:- 35. By taking us through the impugned judgment delivered in W.P.(C) No.3870 of 2020, the learned Advocate for the appellant would submit that the learned single Judge has not properly dealt with the contentions while answering the questions raised for consideration. He would submit that it has been recorded in the impugned judgment that the appellant should resume the work of the project only after the direction in the said judgment is complied with by the respondents. However, it is amply clear from the materials that the appellant had started the work of earth movement and completed the piling work, which are part of the construction. 36. Learned Advocate for the appellant would further submit that there is no requirement in the EIA notification dated 14.09.2006 that the work should be completed. The Government, keeping in mind that some projects may be under the process of construction, have categorically stated W.A. 617/2023 -:25:- that the notification dated 14.09.2006 would not be applicable if the construction work has commenced as on the date of issuance of the said notification. 37. Learned Advocate for the appellant, in alternative to the first contention with regard to the non-applicability of having EIA certificate for the entire project, would submit that, if this Court is not ready and willing to accept the same, at least it may be held that the appellant had commenced the work of towers 1 and 2 before the issuance of EIA notification, 2006, i.e., on 14.09.2006, and may have to get environmental clearance only for the remaining three towers. In such circumstances, the appellant may not have to pay the penalty or any other fee with regard to those two towers of which construction had begun in 2006 and is over now, and of which several apartments are in use and/or many persons have invested their money in those two towers. W.A. 617/2023 -:26:- 38. On the other hand, Mr. M.P. Sreekrishnan, the learned counsel for respondents 3 and 4, supported the exercise undertaken by the SEIAA, SEAC, and the findings recorded with respect to the non-commencement of the work by the petitioner on or before 14.09.2006. Learned counsel also supported the decision of the learned single Judge in the impugned judgment as well as the order and prayed for dismissal of the appeal. 39. Learned counsel for the contesting respondents would further submit that the appellant had applied for environmental clearance certificate for the first time in the year 2012 for the development of the entire property, knowing fully well that the company would require such a certificate in view of the issuance of EIA notification dated 14.09.2006. The appellant had miserably failed in establishing, either before the authority concerned or before this Court, that it had W.A. 617/2023 -:27:- commenced the construction work in the property in question on or before the issuance of EIA notification, 2006. The respondent Municipality, in its counter affidavit, has produced some satellite imageries of May, 2005. However, no imageries are made available for consideration, showing the progress between May, 2005 to December, 2006. Only the satellite imagery of 11[th] December, 2006, was made part of the report, in which, that part of the land is observed as partially underexposed soil. According to the learned counsel, there being no imagery during the relevant period, it cannot be said that any such work had ever been carried out by the appellant at least up to December, 2006. 40. Learned counsel would also submit that apart from the above material, which has been produced at the instance of the respondent Municipality, appellant has failed to produce any other relevant evidence like the engagement of W.A. 617/2023 -:28:- some labourers for doing excavation work or hiring any machinery or payment of any amount to third person for such basic activities. 41. Learned counsel for the respondents would further submit that though the appellant was fully aware of the existence of EIA notification dated 14.09.2006, it continued construction of two towers and got extension from the respondent Municipality to complete the same. The respondent authority came to know about the activities being carried out by the appellant for the first time only when an application was made on 31[st] July, 2012, for environmental clearance as per the notification dated 14.09.2006. 42. Learned counsel would also submit that having received the communication dated 10.09.2012, in which the appellant had tried to explain about the completion of two towers for the first time and tried to plead that substantial W.A. 617/2023 -:29:- work of those two towers was completed on 14.09.2006, it cannot be believed, in view of the report produced by the respondent Municipality. Even the register of buildings under construction/land development etc., on the date of implementation of the building rules, maintained by the 6[th] respondent Municipality, suggests that as of 25.05.2007, only earth was removed, and piling completed. 43. By taking us through the communication dated 10.09.2012, particularly paragraph 6 therein, learned counsel for the respondents would submit that the appellant had tried to establish before the authority that substantial work was completed on 14.09.2006, which is contrary to the material on record. Learned counsel would also submit that there is no material whatsoever produced either in the nature of photographs or any documents like register maintained on or before 14.09.2006 to establish that the appellant had W.A. 617/2023 -:30:- commenced the construction work of the towers in question on or before 14.09.2006. 44. Learned counsel would also submit that the respondent Municipality has not produced any register maintained by it with regard to the months from February, 2006 to November, 2006 and May, 2007. If the relevant documents had been brought on record, the same might have been considered to come to the right conclusion, while deciding the fact whether any type of construction work had commenced by the appellant on or before 14.09.2006. 45. Learned counsel for the respondents would also submit that only based on a report, which is incomplete since it does not show the photographs between February, 2006 and November, 2006, and an incomplete register, the correctness of which is in doubt, the same cannot be accepted as gospel truth, and therefore, it cannot be said that there is sufficient W.A. 617/2023 -:31:- material in favour of the appellant to substantiate the contention that the company had commenced the work of construction, including piling, on or before 14.09.2006. According to the learned counsel, in the absence of such materials, the learned single Judge was right in not believing the contention raised by the appellant that the project had commenced the work before issuance of the notification dated 14.09.2006, since no other evidence has been brought on record like engaging labourers, hiring machinery for excavation, etc., for the period from February, 2006 to 14.09.2006. 46. Learned counsel would further submit that the learned single Judge has considered all the relevant aspects while delivering the impugned judgment and subsequent passing of the order in the review petition, which does not call for any interference in appeal. It is also submitted that the alternative request made by the learned Advocate for the W.A. 617/2023 -:32:- appellant to exempt the two towers of which the construction work was allegedly started before 14.09.2006, should not be accepted, since no material whatsoever in support of the same has been produced by the appellant, and _prima facie_ proved, either before the authority concerned, learned single Judge or even before this Court. Therefore, learned counsel for the respondents would submit that the appeal does not call for interference; hence, the same may be dismissed. 47. We have heard Mr. Santhosh Mathew, learned Advocate for the appellant, Mr. S. Manu, Deputy Solicitor General of India appearing for respondent No.1, Mr. M. P. Sreekrishnan, learned standing counsel for respondent Nos. 3 and 4, Mr. S. Jamal, learned standing counsel for Thrikkakara Municipality/respondent No.6, Mr. K. P. Harish, learned Senior Government Pleader appearing for the State and perused the material on record. W.A. 617/2023 -:33:- 48. It is not disputed that the properties where the alleged construction was made are part of Thrikkakara Municipality. The appellant, a joint venture entered into between Smt. Seena Sunny, owner of 330 cents of land comprised in Re-survey No.359/3 in Thengola Kara in Kakkanad Village and certain others, in the year 2006, started to construct 500 multi-storeyed residential apartments in five different towers. 49. As required under the Panchayat laws, permission from the Panchayat was necessary to put up construction on the land in question, and therefore, the appellant made an application to the concerned authority in that regard. The Secretary (Special Grade), Thrikkakara Grama Panchayat, stating that since the Kerala Building Rules, 1984 have not been enforced with the Panchayat area, they have no objection in putting up residential complexes in the land in question, issued Exhibit-P1 certificate dated 04.02.2006, permitting the W.A. 617/2023 -:34:- appellant to put up construction on the land on condition that three metres distance has to be left from the boundary adjacent to PWD and earmarked Panchayat roads and that adequate drainage facilities also has to be provided. 50. While so, the Central Government, exercising its powers under Rule 5 of the Environment (Protection) Rules, 1986, which empowers it to prohibit and restrict the location of industries and carrying on processes and operations in different areas, issued a notification dated 14.09.2006 requiring prior environmental clearance for projects involving built-up area exceeding 20000 sq. metres. Said notification imposes certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the schedule to it, unless prior environmental clearance has been accorded in accordance W.A. 617/2023 -:35:- with the objectives of the National Environment Policy as approved by the Union Cabinet on 18[th] May, 2006. 51. As per clause (2) of the EIA notification dated 14.09.2006, different types of projects or activities which require environmental clearance have been narrated. As per schedule, the land in question will come under item No.8. Item No.8 of the schedule would apply if the land is used for building/construction projects/area development projects and townships. Reading of the said clause also makes it clear that certain projects referred to in the schedule require environmental clearance before putting up any new construction work or preparation of land by project management. Hence, for all new projects, as well as expansion on existing projects, prior environmental clearance is required. 52. The case put forward by the appellant is that the EIA notification was made applicable only on 14.09.2006, and the W.A. 617/2023 -:36:- same would not apply to the appellant, in view of the fact that the project had started the construction activities before 14.09.2006. The appellant, for the first time, made Exhibit P6 application under the notification only on 31.07.2012 for the issuance of environmental clearance for all the buildings. It appears from the record that the appellant had constructed two towers consisting of 240 apartments. 53. It is also the case of the appellant that being a single project and the work having started before 14.09.2006, the commencement of the construction activities itself is sufficient to get exemption from obtaining environmental clearance under the EIA notification of 2006. The appellant, therefore, prayed for 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 W.A. 617/2023 -:37:- the EIA Notification, 2006, which was issued on 14[th] 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 14[th] September 2006; - (iii) Issue a writ in the nature of declaration, declaring that since the petitioner submitted Ext.P6 application on 31.07.2012 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 Court deem fit and proper in the facts and circumstances of this case. 54. The prayers stated supra have been made by the appellant also on the ground that, immediately after submission of the application dated 31.07.2012 for obtaining environmental clearance, Exhibit-P8 communication dated 10.09.2012 was submitted to the Member Secretary, SEIAA/ respondent No.3, requesting to do the needful since substantial work of the building has been completed. W.A. 617/2023 -:38:- 55. The question raised before us is to deal with the submission made by both the learned Advocates appearing for the respective parties whether there is sufficient material to establish that any type of construction was put up or any construction activities had commenced before 14.09.2006, i.e., the date of issuance of EIA notification. 56. As stated supra, in compliance with the order passed by the learned single Judge dated 12.08.2020, a report was produced at the instance of Thrikkakara Municipality, the then Grama Panchayat. In the said report, two imageries are produced. One is dated 08.07.2005, and another is after more than one year, i.e., on 11.12.2006. In continuation to the first imagery, the report shows two imageries dated 06.01.2008 and 18.03.2020 regarding the land in question. Said report has been prepared by the 7[th] respondent/Kerala State Remote W.A. 617/2023 -:39:- Sensing and Environment Centre, Thiruvananthapuram, and the following are the observations in the report: ## “ **SURVEY NUMBER 359/3** As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analysed are of 08/12/2005, 11/12/2006, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006 (Figure. 4), so not able to produce the imagery of 06/11/2006. The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005 (Fig. 3). In the imagery of 11/12/2006 (Figure. 4), the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008 (Figure No. 5), more construction activities were observed towards north and southern part with soil exposure/construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part. W.A. 617/2023 -:40:- ## **LIMITATIONS** This report is prepared based on the observations from the available satellite data of different years without physical verification. ## **OBSERVATIONS & CONCLUSION** As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analysed are of 08/12/2005, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006, so not able to produce the imagery of 06/11/2006. The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005. In the imagery of 11/12/2006, the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008, more construction activities were observed towards north and southern part with soil exposure/ construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part. W.A. 617/2023 -:41:- As per the order of the Hon’ble Court dated 18/06/2020, the available satellite imagery is for 11/12/2006 (Figure. 4). Therefore, the requirement in No. (i) & (ii) in para 11 of the order dated 18/06/2020, the analysis has been carried out with imagery dated 11/12/2006 as satellite imagery as on 06/11/2006 is not available. In respect of requirement No. (iii), it is respectfully brought to the notice of the Honourable Court that exposed soil observed in northern part in 08/12/2005 data. Construction activities observed in northern part and exposed soil in south in 11/12/2006 data. The data of year 2008 shows more construction activities towards north and south part. The data of year 2020 shows more buildings/structures towards south and north part.” 57. From the above report, it appears that the authority was not able to produce any image showing the status of the buildings on or before 14.09.2006 (the crucial date). The imagery dated 11.12.2006 shows some exposed soil with construction activities towards the north and southwest and the central part. In our opinion, that is not sufficient to believe W.A. 617/2023 -:42:- that the appellant company, having obtained Exhibit P1 certificate in the month of February, 2006, started any type of construction work, including excavation of land, on or before 14.09.2006. Even the register maintained by the respondent Panchayat/Municipality shows that as on the date of inspection i.e., 25.05.2007, the stage of construction is mentioned as “earth movement started piling completed”. However, neither the appellant nor the respondent Municipality has produced any other register showing the construction activities carried out on the subject land between February, 2006 and 14.09.2006. The appellant or the respondents should have produced such an important document to substantiate their contentions. 58. That apart, the appellant has failed to produce any other documents like details of the agencies hired for carrying on construction activities on or before 14.09.2006. No materials W.A. 617/2023 -:43:- whatsoever to support the contention that the construction activities were commenced before 14.09.2006 have been produced by the appellant, and therefore, the learned single Judge, after appreciating all these aspects, has not committed any error in not accepting the case put forth by the appellant that the construction activities of two towers were commenced before the issuance of EIA notification dated 14.09.2006. 59. The learned single Judge, having examined all these issues and after perusing the materials produced by the appellant, considered three important aspects of the matter in the impugned judgment, which are reproduced hereunder: “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? W.A. 617/2023 -:44:- - (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?” 60. Learned Advocate for the appellant would submit that as per clause (8)(i) of the EIA notification dated 14.09.2006, SEAC is supposed to decide the application for grant of environmental clearance, within 45 days of receipt of the recommendations of Expert Appraisal Committee, or within 105 days of receipt of the final Environmental 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 in the notification. 61. He would also submit by referring to sub-clause (iii) of clause 8 that in the event that the decision of the regulatory authority is not communicated to the applicant within the W.A. 617/2023 -:45:- period specified in sub-paragraph (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. 62. In reply to the contentions made with regard to clause (8) (iii) of the EIA notification by the learned Advocate for the appellant, learned counsel for the respondents would submit that there was no final recommendation by the Expert Appraisal Committee and the submissions made by the learned Advocate for the appellant has rightly been rejected by the learned single Judge. 63. All these questions have been answered in detail by the learned single Judge, in paragraphs 18 to 24 of the impugned judgment, which read as under: W.A. 617/2023 -:46:- “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 W.A. 617/2023 -:47:- 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: W.A. 617/2023 -:48:- **“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 W.A. 617/2023 -:49:- 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** W.A. 617/2023 -:50:- **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 W.A. 617/2023 -:51:- 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 W.A. 617/2023 -:52:- 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 W.A. 617/2023 -:53:- 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, W.A. 617/2023 -:54:- 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 W.A. 617/2023 -:55:- 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, W.A. 617/2023 -:56:- 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 W.A. 617/2023 -:57:- 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 W.A. 617/2023 -:58:- 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.” 64. We have also gone through the order passed by the learned single Judge in R.P. No.469 of 2021 dated 20.10.2021. Perusal of the said order would show that all the contentions raised by the learned Advocate for the appellant and learned standing counsel appearing for respondents 3 and 4 relying upon the report submitted by the 7[th] respondent/Kerala State Remote Sensing and Environmental Centre, were re-examined by the learned single Judge and it was observed as under: W.A. 617/2023 -:59:- “8. The learned counsel for the review petitioner submitted that the report submitted by the seventh respondent, the Kerala State Remote Sensing and Environmental Centre, pursuant to the direction issued by this Court on 12.08.2020 would clearly establish that the petitioner has commenced the construction of the project during 2005- 2006 itself and the finding to the contrary rendered by this Court without taking note of the said report is vitiated, and warrants interference in exercise of the review jurisdiction of this Court. According to the learned counsel, in the light of the said report of the seventh respondent, this Court ought to have held that the EIA Notification does not apply to the project of the petitioner. It was also submitted by the learned counsel that the project of the petitioner from the very inception was for construction of five blocks of residential apartments and insofar as the materials on record would show that the petitioner has commenced the construction of the first two blocks at least before the EIA Notification, the view taken by this Court that the last three blocks of the project is liable to be treated as expansion of the completed blocks for the purpose of the EIA Notification, is unsustainable in law. According to the learned W.A. 617/2023 -:60:- counsel, a project implemented in two phases shall be regarded as one project and the phase of the project, which is not completed, cannot be regarded as an expansion of the completed project for the purposes of the EIA Notification. 9. I have examined the arguments of the learned counsel for the petitioner. 10. It is seen that on 12.08.2020, this Court directed the seventh respondent to file a report making available the satellite imagery showing the nature and lie of the land of the petitioner (i) as on 14.09.2006, the date on which the Environment Impact Assessment Notification, 2006 came in force; (ii) as on 06.11.2006, the date on which the State Government extended certain provisions of the Kerala Municipality Act, 1994 and all the provisions of the Kerala Municipality Building Rules, 1999 to the erstwhile Thrikkakkara Grama Panchayat; and (iii) as on the date of commencement of the construction of each block in that project. In response to the said interim order, the seventh respondent has filed a report on 17.09.2020 and it was placing reliance on the said report that the learned counsel for the petitioner argued that the finding of this Court that there is nothing on record to indicate that W.A. 617/2023 -:61:- the petitioner has commenced the construction of the project prior to the EIA Notification is vitiated by errors apparent on the face of the record. The observations and conclusions made by the seventh respondent in the report filed on 17.09.2020 based on the satellite data referred to therein read thus: ## “OBSERVATIONS & CONCLUSION As per the Survey of India toposheet of year 1967, the survey plot 359/3 was observed as paddy land. The available satellite data sets analyzed are of 08/12/2005, 11/12/2006, 06/01/2008 and 18/03/2020. The imagery available for the year 2006 in public domain is on 11/12/2006, so not able to produce the imagery of 06/11/2006. The plot was observed under fallow land towards south and with exposed soil towards north in the data of 08/12/2005. In the imagery of 11/12/2006, the south part was also observed partially under exposed soil, with construction activities towards north and southwest and central part. In imagery of 06/01/2008, more construction activities were observed towards north and southern part with soil exposure/construction materials. The imagery of 18/03/2020 shows more buildings/structures towards south and north part. As per the order of the Hon'ble Court dated 18/06/2020, the available satellite imagery is for 11/12/2006 (Figure.4). Therefore the requirement in No. (i) & (ii) in para 11 of the order dated 18/06/2020, the analysis has been carried out with imagery dated 11/12/2006 as satellite imagery as on 06/11/2006 is not available. In respect of requirement No. (iii), it is respectfully brought to the notice of the Honourable Court that exposed W.A. 617/2023 -:62:- soil observed in northern part in 08/12/2005 data. Construction activities observed in northern part and exposed soil in south in 11/12/2006 data. The data of year 2008 shows more construction activities towards north and south part. The data of year 2020 shows more buildings/structures towards south and north part. This report is being submitted in compliance with the direction in order dated 18/06/2020 in W.P(C) No.3870/2020.” As evident from the extracted portion of the report, the satellite imagery of the land of the petitioner as on 06.11.2006 was not available with the seventh respondent. Instead, the two satellite imagery of the land of the petitioner which were available with the seventh respondent were that of 08.12.2005 and 11.12.2006. It was placing reliance on the finding in the report that exposed soil was visible in the data of 08.12.2005 that the learned counsel for the review petitioner argued that it shall be inferred that the petitioner commenced the construction of the work before 14.09.2006. I do not find any substance in the said argument, for the petitioner has not even obtained the Certificate of the Grama Panchayat as on that day. Ext.P1 certificate of the Grama Panchayat was obtained by the petitioner only much later on 04.02.2006. Coming to the imagery of the land dated 11.12.2006, as noted, the W.A. 617/2023 -:63:- EIA Notification came into force in the meanwhile on 14.09.2006. In other words, the report submitted by the seventh respondent on 17.9.2020 does not improve the case of the petitioner that they have commenced the construction of the project prior to 14.09.2006. In the absence of any material to indicate that any construction whatsoever has taken place in the land prior to 14.09.2006, it is unnecessary to consider the arguments advanced by the learned counsel that the construction of the last three blocks of the project cannot be treated as an expansion of the construction of the first two blocks. The review petition, in the circumstances, is without merits and the same is, accordingly, dismissed.” 65. Going through the impugned judgment as well as the order passed in the review petition, we are in complete agreement with the observations made therein by the learned single Judge, which do not call for interference in appeal. 66. We are also not inclined to accept the submission made by the learned Advocate for the appellant that the W.A. 617/2023 -:64:- appellant be exempted from obtaining environmental clearance certificate for the two towers since we have already decided that no construction activities were commenced before 14.09.2006. In the result, the appeal fails and is accordingly dismissed. No costs. Sd/- **A.J. Desai, Chief Justice** Sd/- **V.G. Arun Judge** krj //TRUE COPY// P.A. TO C.J. W.A. 617/2023 -:65:- ## **A P P E N D I X** ## **' APPELLANT S ANNEXURES** : - - A1 COPY OF THE APPLICATION FOR RENEWAL OF BUILDING PERMIT DATED 19.10.2022 PREFERRED BY THE APPELLANT BEFORE THE 6TH RESPONDENT. - A2 COPY OF THE RECEIPT OF ACKNOWLEDGMENT OF ANNEXURE-A1 ISSUED BY THE 6TH RESPONDENT. - A3 COPY OF THE MINUTES OF THE 113RD MEETING OF THE 3RD RESPONDENT DATED 20.04.2022. - A4 COPY OF THE MINUTES OF THE 134TH MEETING OF THE 4TH RESPONDENT. - A5 COPY OF THE APPLICATION FOR ENVIRONMENTAL CLEARANCE DATED 23.12.2022 SUBMITTED BY THE APPELLANT TO THE 3RD RESPONDENT. - A6 COPY OF THE MINUTES OF THE 136TH MEETING OF THE 4TH RESPONDENT. - A7 COPY OF THE MINUTES OF THE 123RD MEETING OF THE 3RD RESPONDENT. - A8 COPY OF THE SOP DATED 07.07.2021 ISSUED BY THE 1ST RESPONDENT. ## **RESPONDENTS’ ANNEXURES: - ‘NIL’** //TRUE COPY// P.A. TO C.J.