Kerala High Court
Green Vistas Infrastructure Projects vs Union Of India on 30 June, 2020
Equivalent citations: AIRONLINE 2020 KER 319
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942
WA.No.797 OF 2020
[AGAINST THE INTERIM ORDER DATED 18-06-2020 IN WP(C) NO.3870/2020]
APPELLANT/PETITIONER IN WP(C):
GREEN VISTAS INFRASTRUCTURE PROJECTS,
G-159, PANAMPILLY NAGAR, ERNAKULAM-682036,
REPRESENTED BY ITS AUTHORISED SIGNATORY,
MR. SAURABH GULECHHA.
BY ADVS. SRI.K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI
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.
3 STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA)
KSRTC BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM-695001,
REPRESENTED BY ITS MEMBER SECRETARY.
4 STATE ENVIRONMENT ASSESSMETN 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.
ADDL.R7 THE KERALA STATE REMOTE SENSING AND ENVIRONMENTAL CENTRE,
VIKAS BHAVAN, C-BLOCK, THIRUVANANTHAPURAM, KERALA 695033,
REPRESENTED BY ITS DIRECTOR.
W.A.No.797 of 2020 2
R1 BY ADV. SHRI P. VIJAYAKUMAR, ASG OF INDIA
R2 & R5 BY GOVT. PLEADER SRI. S.KANNAN
R3 & R4 BY ADV. SRI. M.P.SREEKRISHNAN
R6 BY ADVS.SRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY
SRI.S.SARATH PRASAD
R7 BY ADV. SRI. S. VISHNU
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2020, THE COURT ON
30-06-2020 DELIVERED THE FOLLOWING:
W.A.No.797 of 2020 3
JUDGMENT
Dated this the 30th day of June, 2020 S.Manikumar, CJ.
Instant writ appeal is filed against an interim order dated 18.06.2020 in W.P.(C) No.3870 of 2015, by which the writ court suo motu impleaded Kerala State Remote Sensing and Environmental Centre, Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala-695 033, represented by its Director, as additional 7th respondent in the writ petition and issued certain directions.
2. Short facts leading to the appeal are as follows:
Appellant is a joint venture company, incorporated for construction of a multi-storeyed apartment complex in Sy. No.395/3 in Kakkanad Village of Thrikkakara Municipality (erstwhile Thrikkakara Panchayat). Based on Exhibit-P1 No Objection Certificate dated 4.2.2006 issued by the Secretary, Thrikkakara Municipality (respondent No.6), construction was commenced.
Thereafter, the appellant obtained all the required permissions from the concerned authorities, viz., Exhibit-P2 certificate issued by the Commandant General of Fire & Rescue Department dated 17.02.2009, Exhibit-P3 NOC issued by the Southern Naval Command dated 15.12.2014 for five blocks, and Exhibit-P4 NOC issued by the Airport Authority of India dated 27.02.2016, valid till 26.02.2021, as on the date of application and commencement of construction. Appellant has also obtained building permit and occupancy certificate for three towers from the respondent Municipality. However, later W.A.No.797 of 2020 4 viz., State Environmental Impact Assessment Authority (SEIAA), represented by its Member Secretary, and State Environment Assessment Committee (SEAC), represented by its Secretary, respondents 3 and 4 respectively, initiated proceedings against the appellant stating that, the appellant has failed to obtain prior environmental clearance under the Environmental Impact Assessment Notification, 2006 (EIA). At this juncture, appellant approached the writ court and filed W.P.(C) No.3870 of 2020, seeking the following reliefs:
i) "Issue a writ in the nature of declaration that in view of the fact that the petitioner commenced construction activities based on Exhibit-P1 NOC, the petitioner is not required to take Environmental Clearance under the provisions of EIA Notification, 2006, which was issued on 14th September, 2006.
ii) Issue a writ in the nature of declaration, that since the petitioner commenced construction activities based on Exhibit-
P1 NOC, 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 14.09.2006;
iii) Issue a writ in the nature of declaration that since the petitioner submitted Exhibit-P6 application on 31.07.2012 and no decision was communicated to it, within 105 days, as prescribed by clause 8 of the EIA Notification, 2006, the petitioner is deemed to have been granted environmental clearance."
3. Dates of record of proceedings in the writ petition, as furnished by the learned Senior Counsel for the appellant, are hereunder: W.A.No.797 of 2020 5
10-02-2020 Writ Petition No: 3870 of 2020 is filed 11.02.2020 Learned Single Judge directed the petitioner to produce typed copy of page 97 and directed the Registry to number the writ petition on production of the copy and posted the case to 12.02.2020.
12.02.2020 Notice taken by all the respondents. Respondents 3 & 4 were directed to furnish instructions with respect to the interim relief sought by petitioner and posted the writ petition 02.03.2020.
02.03.2020 Writ Petition admitted. ASG took notice for RI. GP took notice for R2 & R5. Senior Counsel for R3, R4 & R6 took notice. Writ petition posted after 2 weeks for counter affidavit of the respondent Due to Covid 19 the - Writ Petition was not listed further in the month of March, 2020.
19-05-2020 The respondents sought time to file counter affidavit and statements. Three weeks time granted and writ petition posted to 18-06-2020 10-06-2020 I.A. 1 of 2020 to accept P30 to P33 and I.A.2 of 2020 stay petition filed.
4. On 18-06-2020, the writ court passed an interim order, suo motu impleading Kerala State Remote Sensing and Environmental Centre, Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala-695 033, represented by its Director as 7th additional respondent and issued directions, to produce satellite imagery of the subject property.
5. Paragraphs 7 to 13 of the impugned interim order read thus:
"7. Ext.P1 no-objection certificate issued in the name of Smt.Seena Sunny is for the construction of a residential flat in Sy.No.359/3 of Kakkanad village, which is one issued by the Secretary of the erstwhile Thrikkakara Grama Panchayat. The extent of property, the number of blocks or even the built up area of the proposed construction are not mentioned in Ext.P1. Though it is averred in paragraph 4 of the writ petition that the petitioner commenced construction prior to Environment Impact Assessment W.A.No.797 of 2020 6 Notification, 2006, the satellite imagery available at Google Earth Pro [which maps the earth by superimposing satellite images, Ariel photography, etc.] as on 11.12.2006 (imagery date:12/11/2006 10°01'05.07"N 76°21'59.80" E elev 97 ft) and as on 06.01.2008 (imagery date:1/6/2008 10°01'11.49"N 76°21'53.36" E elev 31 ft) do not show any construction/ structure on the property in question.
8. Considering the nature of contentions raised in the writ petition, this Court finds that the question as to whether the petitioner had commenced construction of the building prior to 14.09.2006, the date on which the Environment Impact Assessment Notification, 2006, came into force requires to be ascertained based on satellite imagery, which has to be obtained from the Kerala State Remote Sensing and Environmental Center. The date of commencement of constructions has also relevance in view of the notification dated 06.11.2006 issued by the State Government extending certain provisions of the Kerala Municipality Act, 1994 and all the provisions of the Kerala Municipality Building Rules, 1999 to Thrikkakara Grama Panchayat and also the circulars issued by the State Government laying down guidelines, like Circular No.37346/RB.1/07/LSGD dated 03.07.2007 and Circular No.23548/RD.2/08/LSGD dated 03.04.2008.
9. In such circumstances, the Kerala State Remote Sensing and Environmental Center, Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala-695033, represented by its Director, is suo motu impleaded as additional 7 th respondent in this writ petition.
10. The learned counsel for the petitioner to serve a copy of the writ petition-to Sri. Vishnu. Chempazhanthi, the learned Senior Counsel for the additional 7th respondent.
11. The additional 7" respondent shall make available for the perusal of this Court, satellite imagery of the property on which the petitioner company had constructed few blocks of its residential apartment Green Vistas Prakrriti, showing the nature and lie of the property (i) as on 14.09.2006, the date on which the Environment Impact Assessment Notification, 2006 came into 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 Thrikkakara Grama W.A.No.797 of 2020 7 Panchayat; and (iii) as on the date of commencement of the construction of each blocks in that project. The satellite imagery along with a report of the Director shall be placed on record, by 24.06.2020.
12. The Secretary of the 6 respondent Municipality shall produce before this Court, in sealed cover, the entire files relating to Ext.P1 no-objection certificate dated 04.06.2006 granted by the erstwhile Thrikkakara Grama Panchayat for the purpose of constructing residential flat in Sy.No.359/3 of Kakkanad village, including the application for NOC, title deeds and other documents enclosed therewith, and also the building plan, site plan, etc., on 24.06.2020.
13. Show the name of the senior Counsel for the additional 7th respondent in the cause list.
List on 24.06.2020."
6. It is against the abovesaid interim order dated 18-06-2020, instant appeal is filed on the following grounds:
(I) Even though the respondents sought time to file counter affidavit, writ court without considering their contentions, passed the interim order disabling even from taking contentions in their-own way. The interim order is a highly prejudiced one as the learned Single Judge has stepped into the shoes of the respondents.
(ii) Writ court, in the impugned order, has observed that the satellite imagery available at Google Earth Pro as on 11.12.2006 and as on 06.01.2008, do not show any construction/structure on the property in question. In order to verify the doubt, writ court has suo motu impleaded an autonomous body established by the Govt. of Kerala under the Department of Planning and Economic Affairs, for carrying out research, training and awareness programs in the period of application of remote sensing and GIS in land W.A.No.797 of 2020 8 and water resource management, environmental monitoring and up-keeping. Thus, the said center is not legally equipped even to verify the question which Is mooted in the mind of the writ court. In the context, appellant wishes to bring to the notice of this Court that later, on verification, the appellant finds that the longitude and latitude mentioned in paragraph 7 of the interim order does not relate to the actual position of the appellant's property, rather it is about 400 meters away. Thus, the learned Single Judge has observed an incorrect satellite image, which shows some other property. Appellant has no objection or a case that no construction or structure has been put up in the said property mentioned in para 7 of the impugned order.
However, on the pretext that the image seen by the writ court happens to be the appellant's property, directed the addl. 7th respondent (sou motu impleaded by the Court) to make available the satellite image of the appellant's property as on 14.09.2006 and 06.11.2006 and the commencement of construction of each blocks in the project. On a perusal of paras 7 and 11 of the impugned order, it is evident that the writ court has directed the 7th respondent to submit a report on an an image, which does not pertain to the case on hand. The said unnecessary act on the part of the learned Single Judge has now invited the addl. 7 th respondent to explore and file and affidavit, which does not come within the purview of objects of the said body.
(iii) Writ court while considering the matter even before the counter has been filed by the respondents, has now made up a predetermined decision, as evident from para 7 of the impugned order, and on which, the writ court directed the 7 th respondent to file an affidavit. The said observation in the W.A.No.797 of 2020 9 impugned order opens up the question pertaining to the criteria to evaluate fairness of procedure applying the rules of natural justice. On this ground, appellant has contended that the impugned interim order is ought to be interfered by this Court.
(iv) Appellant started construction on the basis of Ext.P1 NOC issued by the erstwhile Thrikkakara Grama Panchayat. Out of five residential blocks, three are completed and occupancy certificate has already been granted to the appellant, evident from Exts.P22 to P22 (b), P22(c) to P22(e) photographs. At the juncture, when the construction of 4 th and 5th blocks is In progress, respondents 2 and 3 recommended State Pollution Control Board to take action against the petitioner under Section 19 of Environmental Protection Act for violation of the EIA Notification. Writ court observed that the appellant has committed some fraudulent act and passed the impugned interim order without even hearing the petitioner and the respondents. On going through the documents produced, it is very clear that the appellant started construction of the residential block after getting due permissions and No Objections from the concerned authorities.
(v) The case at hand is that the writ court without acceding to the submission by the respondents seeking time to file counter affidavit, directed an authority, who was not in the party array, to produce certain documents in order to prove certain points, which are not at all the case of any respondents on the party array.
(vi) The writ petition pending before the writ court is not a public interest litigation and the activism shown by the W.A.No.797 of 2020 10 learned Single Judge to implead additional 7 th respondent, Kerala State Remote Sensing and Environmental Centre in the party array and the direction to get certain documents, without waiting for the counter affidavit of the respondents, had caused severe prejudice and hardship to the appellant.
7. On the above grounds and by inviting our attention to the date on which, the writ petition was initially taken up for hearing and the date of adjournments, directing the respondents to file counter affidavits, Mr. K.P. Dandapani, learned Senior Counsel appearing for the appellant, submitted that the writ court, on its own, was so anxious to ascertain the satellite images of the property, on a particular date, and appears to have searched the Google Earth Pro for arriving at a finding that, "Though it is averred in paragraph (4) of the writ petition that the petitioner has commenced construction prior to the Environment Assessment Notification, 2006, the satellite imagery available at Google Earth Pro, which maps the earth by superimposing satellite images, Ariel photography, etc., as on 11.12.2006 (imagery date:12/11/2006 10°01'05.07"N 76°21'59.80" E elev 97 ft) and as on 06.01.2008 (imagery date:1/6/2008 10°01'11.49"N 76°21'53.36" E elev 31 ft.), do not show any construction/structure on the property in question.
8. Mr. Dandapani, learned Senior Counsel for the appellant, further contended that the practice of this Court is to obtain instructions from the respondents and proceed further, and in the instant case, writ court granted time to the respondents, to file counter affidavits. But, the writ court has W.A.No.797 of 2020 11 gone beyond the procedure followed by this Court, for a long time and rendered a finding against the appellant. He further submitted that suo motu impleading Kerala State Remote Sensing and Environmental Centre, as the additional 7th respondent, and issuing directions to the said respondent, without awaiting for the respective counter affidavits from other respondents, are wholly unwarranted.
9. By producing a photograph said to have been taken from the Google Map, learned Senior Counsel for the appellant submitted that what has been relied on by the writ court is not correct. At this Juncture, posed with a suggestion as to whether, it is not always open for the appellant to place the correct position before the writ court, and make his submissions, reply of the learned Senior Counsel was that when the matter came up on 24-06- 2020, while issuing further directions, writ court only made a casual mention about the instant writ appeal.
10. Heard the learned Senior Counsel appearing for the appellant and perused the material available on record.
11. In the case on hand, when the respondents have not filed any counter affidavits or furnished instructions, writ court suo motu, appeared to have searched Google Earth Pro, and taken a satellite image of the property. Though the learned Senior Counsel appearing for the appellant submitted that writ court has recorded a categorical finding against the appellant, going through the later portion of the interim order dated 18-06- W.A.No.797 of 2020 12 2020 by which, the writ court has issued directions to the Kerala State Remote Sensing and Environmental Centre, additional 7 th respondent, we are afraid to accept the contention of the learned Senior Counsel, though the above opinion of the writ court could at best, be construed as an opinion and not an ultimate finding, as to the period of commencement of construction of the building. Writ court has sought for further information from the 7th respondent.
12. Writ court, in exercise of powers under Article 226 of the Constitution of India, is empowered to seek the assistance of any expert body and in the case on hand, has sought for assistance, from the Kerala State Remote Sensing and Environmental Centre, additional 7 th respondent. It can also be seen that from 12-02-2020 onwards, when the writ court ordered notice, there was no instruction or counter affidavit from the respondents.
13. That apart, Mr. Dandapani, learned Senior Counsel appearing for the appellant, placed reliance on paragraphs 17 to 21 of the decision of the Hon'ble Supreme Court in Bharat Ratna Indira Gandhi College of Engineering and Ors. v. State of Maharashtra and Ors. reported in (2011) 4 SCC 565 and para 5 in Divisional Manager, Aravali Golf Club and Ors. v. Chander Hass and Ors. reported in (2008) 1 SCC 683.
14. In Divisional Manager, Aravali Golf Club case (cited supra), respondents were initially appointed as Mali's (Gardeners), in 1988 and 1989 respectively. They were told to work as Drivers, though there was no post of W.A.No.797 of 2020 13 Driver in the establishment. They continued to work as drivers, but paid wages for the post of Malis. They were regularised as Malis, in the year 1999. Their request for regularization was rejected on the ground that there was no post of a driver. Suit filed by them was dismissed. Appeal filed by them was allowed with a direction to create the post of Driver and directed to regularize. Employer filed an appeal before the High Court, which confirmed the same. When the correctness of the same was tested, having regard to the power of the Court, in issuing directions for creation of posts, the Hon'ble Supreme Court, at para 15, observed thus:
"15. The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside".
15. On the limits of Judiciary, the Hon'ble Apex Court, at paragraphs 17 to 22, of the said decision further observed thus:
"17. Before parting with this case we would like to make some observations about the limits of the powers of the W.A.No.797 of 2020 14 judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Drugs and Pharmaceuticals Ltd. [(2007) 1 SCC 408] and S.C. Chandra and Ors. v. State of Jharkhand and Ors. (AIR 2007 SC 3021) (See concurring judgment of M. Katju, J.).
19. Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State - the legislature, the executive and the judiciary - must have respect for the others and must not encroach into each others domains.
21. The theory of separation of powers first propounded by the French thinker Montesquieu (in his book `The Spirit of Laws') broadly holds the field in India too. In chapter XI of his book `The Spirit of Laws' Montesquieu writes:W.A.No.797 of 2020 15
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
(Emphasis supplied) We fully agree with the view expressed above. Montesquieu's warning in the passage above quoted is particularly apt and timely for the Indian Judiciary today, since very often it is rightly criticized for 'over-reach' and encroachment into the domain of the other two organs."
16. In Bharat Ratna Indira Gandhi College of Engineering and Ors. (cited supra), a suo motu writ petition was registered by the Bombay High Court and an order was passed directing the respondent therein, that, if the colleges fail to fill up the posts of Principal by 31-05-2009, the University will issue orders in the first week of June, 2009, prohibiting admissions in the W.A.No.797 of 2020 16 colleges concerned. On the above facts, the Hon'ble Apex Court, at paragraph 5, held as follows:
"5. In our opinion, no such direction could have been validly given by the High Court. If there is no permanent Principal, obviously the Acting Principal shall officiate as Principal, but that does not mean that in the absence of the permanent Principal, admissions to the college should be prohibited. There is no statutory rule that in the absence of a permanent Principal admissions in the Colleges cannot be made. Thus, the High Court has indulged in judicial legislation, which is not ordinarily permissible to the Courts vide Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. (2008) 1 SCC
683. Also, none of these Colleges were made parties before the High Court, and hence the aforesaid direction is violative of the principles of natural justice".
17. Reading of the above decisions relied on by the learned Senior Counsel appearing for the appellant makes it clear that, the said decisions were in relation to exercise of legislative or executive function, as the case may be, and thus, rendered on the facts stated therein, which, in the case on hand, are apposite. If the appellant is in possession of Google Map photographs, depicting the correct location of the subject property and as to the period of commencement of construction, we are of the view that it is always open to the appellant to contend before the writ court that the opinion of the writ court is not correct, and contest the writ petition on merits.
W.A.No.797 of 2020 17
18. Considering the entire facts and materials on record, particularly, the submissions of the appellant in paragraph 4 of the statement of facts, and the decisions relied on by the learned Senior Counsel for the appellant, we are of the view that the writ court has not recorded any findings against the appellant. Writ court has sought for further information from the 7 th respondent to ascertain the veracity of the facts pleaded by the appellant.
19. There is nothing on record to indicate that the photograph shown before this Court was produced before the writ court and any submissions were advanced. A prima facie opinion of a Court, based on information or search, can always be rebutted with contra materials available with the appellant.
In the light of the above discussion, we are not inclined to interfere with the interim order dated 18.06.2020 in W.P.(C) No.3870 of 2020. Writ appeal fails and accordingly, dismissed. Counter affidavit, as directed by the writ court, be filed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj //TRUE COPY// P.A. TO C.J.