Kerala High Court
Kent Constructions Pvt. Ltd vs Corporation Of Kochi on 22 August, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935
WP(C).No. 28747 of 2012 (P)
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PETITIONER :
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KENT CONSTRUCTIONS PVT. LTD.,
1ST FLOOR, KENT HAIL GARDEN, STADIUM LINK ROAD
PALARIVATTOM P.O., ERNAKULAM, COCHIN-682 025
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.SRI.V.M.KURIAN
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
RESPONDENT(S) :
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1. CORPORATION OF KOCHI,
OFFICE OF THE KOCHI CORPORATION, ERNAKULAM
KOCHI-682011,
REPRESENTED BY ITS SECRETARY.
2. CHIEF ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD,
KADAVANTHRA, KOCHI-682 020.
R1 BY ADVS. SRI.P.K.SOYUZ,SC,COCHIN CORPORATION
SRI.K.ANAND, SC, COCHIN CORPORATION
R2 BY ADVS. SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2013,
THE COURT ON 21/11/2013 DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 28747 of 2012 (P)
APPENDIX
PETITIONERS' EXHIBITS :
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EXHIBIT P1- TRUE COPY OF THE BUILDING PERMIT DATED 22-08-2006 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P2- TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 18-04-2011.
EXHIBIT P3- TRUE COPY OF THE PHOTOGRAPH OF THE COMPLETED BUILDING.
EXHIBIT P4- TRUE COPY OF THE DEMAND DRAFT DATED 11-06-2007 FOR
RS. 50,000/-.
EXHIBIT P5- TRUE COPY OF THE COMMUNICATION DATED 21-11-2007 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P6- TRUE COPY OF THE APPLICATION DATED 30-07-2010 FOR CONSENT
TO OPERATE SUBMITTED BY THE PETITIONER.
EXHIBIT P7- TRUE COPY OF THE COMMUNICATION DATED 13-12-2010 BY THE 2ND
RESPONDENT DIRECTING TO PAY THE ADDITIONAL FEES.
EXHIBIT P8- TRUE COPY OF THE BANKERS CHEQUE DATED 15-07-2010 FOR
REMITTING THE FEE OF RS. 1,40,000/-.
EXHIBIT P9- TRUE COPY OF THE BANKERS CHEQUE DATED 16-12-2010 FOR
REMITTING THE ADDITIONAL FEE OF RS. 2,50,000/-.
EXHIBIT P10- TRUE COPY OF THE LETTER DATED 07-01-2011 FROM THE 2ND
RESPONDENT ASKING THE PETITIONER TO SUBMIT ACOPY OF
ENVIRONMENTAL CLEARANCE FROM THE MINISTRY OF
ENVIRONMENT AND FOREST.
EXHIBIT P11- TRUE COPY OF CONSENT TO ESTABLISH DATED 29-03-2011 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P12- TRUE COPY OF THE NOTIFICATION DATED 14-09-2006 ISSUED BY THE
MINISTRY OF ENVIRONMENT AND FOREST.
RESPONDENTS' EXHIBITS :
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EXHIBIT R2(a) COPY OF MOEF CIRCULAR DATED 21.11.2006.
EXHIBIT R2(b) COPY OF THE LETTER PCB/RO-EKM/MFB/IACO-51/10 DATED
18.3.2011.
EXHIBIT R2(c) COPY OF THE LETTER KENT/ADMN/06/2011 DATED 21.3.2011.
EXHIBIT R2(d) APPROVED PLAN SUBMITTED BY THE PETITIONER.
(Contd...)
WP(C).No. 28747 of 2012 (P)
EXHIBIT R2(e) APPLICATION FOR CONSENT TO ESTABLISH SUBMITTED BY
THE PETITIONER DATED 12.6.2007.
EXHIBIT R2(f) LOCATION PLAN SUBMITTED BY THE PETITIONER 1.6.2007.
EXHIBIT R2(g) DRAFT REPORT MADE DURING INSPECTION DATED 14.6.2007.
EXHIBIT R2(h) LETTER NO. PCB/RO/MFB/172/07 DATED 10.9.2007.
EXHIBIT R2(i) REPORT SUBMITTED BY THE CEE.
EXHIBIT R2(j) LETTER NO. PCB/HO/EKM/CE/270/07 DATED 22.10.2007.
EXHIBIT R2(k) PETITIONER'S REPLY DATED 5.11.2008.
EXHIBIT R2(l) LETTER NO. PCB/RO/MFB/172/07 DATED 28.01.2009.
EXHIBIT R2(m) PETITIONER'S LETTER NO. KENT/ADMN/2006/2011 DATED
21.3.2011.
//TRUE COPY//
P.S. TO JUDGE
Mn
A.M.SHAFFIQUE, J.
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W.P.(C) No. 28747 of 2012-P
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Dated this the 21st November, 2013
J U D G M E N T
This writ Petition is filed by a builder of a multi- storied apartment complex consisting of 162 apartments, seeking a direction to the 2nd respondent, the Chief Environmental Engineer, Kerala State Pollution Control Board, to issue consent to operate the solid waste /liquid waste/sewage treatment and disposal system (hereinafter referred to as 'treatment plant') on the basis of Ext.P6 application as expeditiously as possible.
2. The petitioner obtained Ext.P1 building permit dated 22.8.2006 to construct a multi-storied apartment complex in a property having an extent of 60.43 Ares in Sy. No. 226/1 and 138 of Poonithura Village. According to them, they completed the construction and submitted completion certificate to the Corporation of Cochin, the first respondent herein. W.P.(C) No. 28747 of 2012-P 2 Occupancy Certificate was granted by the first respondent as per Ext.P2 dated 18.4.2011. The petitioner has submitted an application along with the requisite fee to the second respondent for establishing the treatment plant. Second respondent sought for certain clarifications and according to the petitioner, those clarifications were furnished to them. Ext.P5 is the said communication. It is the contention of the petitioner that the construction of the building along with treatment plant were completed during 2010. Thereafter they submitted application for consent to operate the treatment plant and necessary fee was also remitted. On the request of the 2nd respondent the additional fee was also remitted as evident from Exts. P6 to P9 documents. By Ext.P10 letter dated 7.1.2011 the second respondent called upon the petitioner to submit Environmental Clearance (hereinafter referred to as 'EC') from the Ministry of Environment and Forest (for short MoEF). The 2nd respondent also issued W.P.(C) No. 28747 of 2012-P 3 Ext. P11 dated 29.3.2011 granting consent to establish the system subject to certain conditions prescribed therein which includes obtaining of EC.
3. According to the petitioner, EC from the MoEF to put up the treatment plant is not necessary. Ext.P12 is the relevant notification dated 14.9.2006 issued by the MoEF. According to the petitioner, the building permit was issued on 22.8.2006 and since the insistence for EC from MoEF had come into effect only with effect from the date of Ext.P12 notification i.e. 14.9.2006, as far as the building of the petitioner is concerned, such a requirement is unnecessary and has no application. Therefore, according to the petitioner, the demand made in Ext.P10 is bad in law and arbitrary and hence seeks the direction in the writ petition.
4. Report is filed by the 2nd respondent in the form of an affidavit. They rely upon MoEF Circular dated 21.11.2006 (Ext.R2(a)) in order to contend that W.P.(C) No. 28747 of 2012-P 4 applications received for NOC after 14 Sept. 2006 will have to obtain Environment Impact Assessment (for short EIA) clearance from the relevant Authority before starting the project activities. According to them, the NOC/EC was brought under the consent regime of the Board on 5.6.2006. Since the petitioner had obtained building permit on 22.8.2006, they could have obtained consent of the Board to establish the treatment plant before starting the construction work. In so far the application is filed only on 12.6.2007, inspection was conducted and Ext.R2(b) letter dated 18.03.2011 was issued to comply with certain requirements including E.C from MoEF. Ext.R2(c) is the reply given by the petitioner seeking time to comply with the direction.
5. Additional counter affidavit is filed by the 2nd respondent further contending that though Ex P1 permit was issued on 22.8.2006, there is no material to indicate that the petitioner had started the project or activity W.P.(C) No. 28747 of 2012-P 5 prior to 14.9.2006. It is contended that since the MoEF is not impleaded in the case, the writ petition is bad for non-joinder of necessary parties. The 2nd respondent points out certain infirmities in the building permit to indicate that though it is dated 22.8.2006, the permit fee is paid only on 22.11.2006 and the building permit is issued for three years from 22.11.2006. Further it is indicated that Ext.P1 permit was issued only for construction of 24135.08 Sq. Metres as evident from Ext.R2(d). Further the permit was subject to certain conditions including the final outcome of W.P.(C) No. 25478/2006. It is further contended that in regard to ongoing projects there was no necessity for obtaining E.C. but if there is an expansion resulting in the project being over the threshold limit, E. C has to be obtained. Further it is contended that before commencing construction, the builder has to comply with Rule 20(2) (d) of the Kerala Municipality Building Rules, 1999, (for short 'KMB Rules'). The petitioner was under
W.P.(C) No. 28747 of 2012-P 6 obligation to submit Form - D to the Secretary of the first respondent and there is no material to suggest that such a document had been filed at all or on which date the same was filed. It is further contended that on the basis of the application submitted by the petitioner an inspection was conducted by the then Chief Environmental Engineer who has indicated to the petitioner that E.C has to be obtained from the MoEF, which is evident from Ext.R2(h) and R2(i). According to the 2nd respondent, there was expansion of the project from 24035.96 Sq. Mtrs to 29687.51 Sq. Metrs.
6. Having regard to the nature of contentions urged, the issue involved in the case is two fold. One is whether the writ petition is bad for non-joinder of necessary parties. Two, is whether Ext. P12 notification applies to the petitioner in the light of the factual circumstances involved in the case.
W.P.(C) No. 28747 of 2012-P 7
7. In regard to the first contention of non-joinder of necessary parties, the 2nd respondent contends that MoEF is a necessary party. In fact no relief is sought for against MoEF. The only contention of the petitioner is that Ext.P12 notification issued by MoEF has no application to the petitioner's project as the same was envisaged and they have started the same prior to Ext.P12. In that view of the matter, I do not think that MoEF is a necessary party to the above writ petition.
8. As far as the 2nd contention is concerned, the answer depends upon the interpretation of Ext.P12 notification. It is not in dispute that if Ext.P12 notification is not applicable in the case of the petitioner, they are not bound to obtain E.C from MoEF. The MOEF notification inter alia indicates as under:
"Now, therefore, in exercise of the
powers conferred by sub-section (1) and
clause (v) of sub-section (2) of Section (3) of the Environment (Protection) Act, 1986, W.P.(C) No. 28747 of 2012-P 8 read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification No. S.O.60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior Environmental Clearance from the Central Government or as the case may be, by the State Level Environmental Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of Section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification".
W.P.(C) No. 28747 of 2012-P 9
9. Building and construction project are included as Item 8(a) of the Schedule. Construction projects exceeding 20000 Sq. Mtrs. upto 1,50,000 Sq. Mtrs of the built up area requires EC. Going by Ext.P12 notification as referred above, EC is required for "construction of new projects" from the date of publication that is on 14.9.2006. The contention of the 2nd respondent in this regard is two fold. One is that the construction of new project had not started until Ext.P12 came into force. Secondly, even otherwise after the construction as envisaged under the building permit there was expansion of the project, which also required EC.
10. The building permit, Ext.P1 is dated 22.8.2006. It is based on an application dated 19.6.2006. The permit is valid for three years from 22.11.2006. Apparently the construction would have commenced only after 22.11.2006 or they were permitted to construct only from 22.11.2006. Therefore even going by Ext.P1 it is evident that the W.P.(C) No. 28747 of 2012-P 10 construction activities could not have commenced by 22.8.2006. Then the question would be what exactly is meant by "construction of new projects as stated in Ext.P12. If it is actual construction, without reference to the date of building permit, definitely Ext.P12 will apply to the facts and circumstances of the case. In other words, issuance of building permit is not the relevant date. Then can it be the date when the project proponent had envisaged the new project even before obtaining the building permit. I don't think so. A bare reading of Ext.P12 confirms that EC is to be obtained before construction of the project.
11. The learned counsel for 2nd respondent also relied upon Rule 22 (2) (d) of the KMB Rules, in order to indicate that no evidence is produced to show that such a procedure had been complied with by the petitioner, prior to Ext.P12. Though it is only a formality, when the Rule insists that before construction, the Secretary has to be W.P.(C) No. 28747 of 2012-P 11 informed about the commencement of the construction, when it comes to the question of finding out as to whether the petitioner had commenced construction prior to Ext.P12, the petitioner could have produced any such records to prove that they have started construction prior to 14.9.2006. When a statutory formality had not been complied with, the only inference that could be drawn is that the petitioner had commenced construction only during the validity of the permit that is after 22.11.2006.
12. The 2nd respondent has also raised another contention that the petitioner had expanded the project after the issuance of Ext.P1 and even assuming that they have started construction prior to 14.9.2006 and when there is an expanded area, still EC had to be obtained. In view of my earlier findings that the construction of the project could have commenced only after 22.11.2006, I do not think that there is any necessity to consider the issue relating to expansion of the project as even otherwise W.P.(C) No. 28747 of 2012-P 12 the petitioner was under obligation to obtain EC from MoEF or the agencies as specified in the notification. Having regard to the aforesaid factual finding, I do not think that there is any necessity to consider the judgments relied upon by either side to arrive at the conclusion in respect of the above case. Therefore the petitioner is bound to comply with the direction issued at Ext.P10.
Accordingly this writ petition is dismissed.
Sd/-
A.M.SHAFFIQUE, JUDGE
rka /true copy/