Partly allowed

Genesis Institute of Medical Science v. Kannur Municipal Corporation

Kerala HC7 Dec 2017WP(C)/3814/2017

Case brief

AI extract

What is this about?

Single judge writ petition regarding deemed environmental clearance for a hospital expansion. The court set aside a rejection order due to lack of application of mind and directed the authority to consider the Expert Appraisal Committee's recommendation within one month.

What did the court decide?

Exhibit P12 set aside; respondent directed to consider SEIAA recommendation within one month or petitioner entitled to deemed clearance on conditions in Exhibit P10.

Genesis Institute of Medical Science Vs Kannur… — Environment and Pollution | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939

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WP(C).No. 3814 of 2017 (B)

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PETITIONER :

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GENESIS INSTITUTE OF MEDICAL SCIENCE

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GROUND FLOOR, JR COMPLEX, TALAP, KANNUR-670 004.

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BY ADVS.SRI.K.I.MAYANKUTTY MATHER

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SRI.R.JAIKRISHNA

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RESPONDENTS :

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1. KANNUR MUNICIPAL CORPORATION KANNUR 670 001, REPRESENTED BY ITS SECRETARY.

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2. KERALA STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM 695024 REPRESENTED BY ITS MEMBER SECRETARY.

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3. STATE LEVEL EXPERT APPRAISAL COMMITTEE DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM-695024 REPRESENTED BITS MEMBER SECRETARY, DIRECTOR, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE.

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4. DISTRICT COLLECTOR, KANNUR, CIVIL STATION, KANNUR-670001.

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*ADDL.R5 IMPLEADED :

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*5. THE VILLAGE OFFICER, EDAKKAD, KANNUR - 670663 ADDL.R5 IS IMPLEADED AS PER ORDER DT 11/7/2017 IN IA 10582/2017.

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R1 BY SRI.K.K.CHANDRAN PILLAI SENIOR ADVOCATE BY ADVS. SMT.S.AMBILY

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SRI.K.V.KRISHNAKUMAR SRI.ABILASH THOMAS SMT.NAMITHA NAMBIAR SRI.P.R.HARI KISHAN

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SMT.ELSA DENNY PINDIS

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R2 TO R4 &ADDL.R5 BY GOVERNMENT PLEADER SRI.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8/11/2017, THE COURT ON 07-12-2017 DELIVERED THE FOLLOWING:

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WP(C).No. 3814 of 2017 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE THEN EDAKKAD GRAMA PANCHAYAT DATED 28.1.2011.

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EXHIBIT P2: TRUE COPY OF THE NOC ISSUED BY THE DEPARTMENT OF FIRE AND RESCUE SERVICES TO THE PETITIONER DATED 15.11.2011. EXHIBIT P2(A): TRUE COPY OF THE NOC ISSUED BY THE DEPARTMENT OF THE FIRE AND RESCUE SERVICES TO THE PETITIONER DATED 25.6.2014.

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EXHIBIT P3: TRUE COPY OF PERMISSION ISSUED FROM THE CHIEF TOWN PLANNER DATED 29.9.2011.

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EXHIBIT P3(A): TRUE COPY OF PERMISSION ISSUED FROM THE CHIEF TOWN PLANNER DATED 29.9.2011.

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EXHIBIT P4: TRUE COPY OF THE CONSENT TO ESTABLISH DATED 19.5.2012.

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EXHIBIT P5: TRUE COPY OF THE APPLICATION FOR CONSENT TO ESTABLISH PREFERRED BEFORE THE KERALA POLLUTION CONTROL BOARD DATED 5.10.2015.

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EXHIBIT P6: TRUE COPY OF THE PERMISSION ISSUED BY THE OFFICE OF THE CHIEF TOWN PLANNER DATED 6.8.2015.

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EXHIBIT P7 TRUE COPY OF THE FORJ 1 AND 1A APPLICATION PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28.10.2015.

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EXHIBIT P8: TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 59TH MEETING OF THE 3RD RESPONDENT DATED 11/12.7.2016.

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EXHIBIT P9: TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 7.10.2016.

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EXHIBIT P10: TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 64TH MEETING OF THE 3RD RESPONDENT DATED 16/17.11.2016.

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WP(C).No. 3814 of 2017 (B)

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-------------------------------------

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EXHIBIT P11: TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 20.12.2016. EXHIBIT P12: TRUE COPY OF THE DRAFT MINUTES OF THE 62ND MEETING OF THE 2ND RESPONDENT DATED 23.12.2016. EXHIBIT P13: TRUE COPY OF THE SOIL INVESTIGATION REPORT GATHERED BY THE PETITIONER CONFIRMING THE DEPTH OF THE PILING REQUIRED DATED NIL. EXHIBIT P14: COPY OF THE NOTICE ISSUED BY THE VILLAGE OFFICER, EDAKKAD

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EXHIBIT P15: COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE 59TH MEETING OF THE SEIAA.

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EXHIBIT P16: COPY OF THE OFFICE MEMORANDUM ISSUED BY THE MINISTRY OF ENVIRONMENT AND FOREST.

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RESPONDENT(S)' EXHIBITS :

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EXT.R2(a): COPY OF THE OFFICE MEMORANDUM DT 27/6/2013. EXT.R2(b): COPY OF THE OFFICE MEMORANDUM DT 12/12/2012. EXT.R2(c): COPY OF THE OFFICE MEMORANDUM DT 19/8/2010.

//TRUE COPY//

P.A. TO JUDGE

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = W.P.(C).No.3814 of 2017

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= = = = = = = = = = = = = = =

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Dated this the 7^th day of December, 2017

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JUDGMENT

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The prayers in this writ petition are as follows:-

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i. Declare that the petitioner is having deemed environmental clearance for constructing their super specialty hospital project as per Exhibit P10 recommendation.

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ii. Issue a writ of mandamus or any other appropriate writ directing the 2^nd respondent to issue deemed environmental clearance in writing to the petitioner for his hospital project as per Exhibit P10 recommendation.

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iii. Call for the records leading to Exhibit P12 and issue a writ of certiorari to quash Exhibit P12 to the extent that it declares the petitioner's project as a violation case.

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iv. Issue a writ of mandamus or any other appropriate writ or order directing the 1^st respondent to process the petitioner's application for revised building permit as if the petitioner is having deemed environmental clearance from the 2^nd respondent.”

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Heard the learned Senior Counsel appearing for the petitioner, the learned Senior Counsel appearing for the 1^st respondent and the Government Pleader appearing for the respondents 2 to 5.

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The petitioner had obtained building permit for construction of a super specialty hospital complex with a built up area of 18,373.54m² . The construction was proceeded with after getting

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W.P.(C).No.3814/17

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all necessary clearances. The petitioner decided to enhance the capacity of the project to 500 beds and Exhibit P7 application for environmental clearance was submitted for permission to construct built up area of 30618.57m² . The application was dated 28.10.2015. The 2^nd respondent, before whom the applications were submitted, forwarded the request to the 3^rd respondent. It is stated that on 11.07.2016, the 3^rd respondent appraised the project and required the production of documents to show that the land is exempted from the purview of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Exhibit P8 is the minutes. The petitioner produced the required documents with Exhibit P9 covering letter. It is submitted that 3^rd respondent conducted a site visit on 01.10.2016. By Exhibit P10 proceedings dated 16.11.2016, the 3^rd respondent recommended the project, subject to the condition that waste water discharge to public drains shall be minimal and after observing strict treatment protocol. The 2^nd respondent was requested to direct the petitioner to enhance the amount of Corporate Social Responsibility to Rs.15 lakhs per year. The petitioner, by Exhibit P11, confirmed willingness to abide by the conditions. However, by Exhibit P12, minutes of the meeting held on

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23.12.2016, the 2^nd respondent rejected the request for environmental clearance. The reasons stated for rejection are two fold. It is stated that vertical expansion of a building project is a violation under the EIA Notification 2006. It is stated that since prior clearance is required for construction of a building of plinth area over 20000m^2, the construction of foundation and the provision for parking area made by the petitioner to support the later expansion as well amounts to a violation of the requirement of prior environmental clearance. The second reason stated is that environmental conditions like water and energy conservation required for environmental clearance cannot be retrofitted to the building already constructed. The 3^rd reason stated is as follows:-

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“In the project of file no.436/SEIAA/ECA/2996/2014 (M/s.Malabar High View Builders Private Ltd., Calicut) the view expressed above is reflected. The project proponent has constructed 19243.12m² (which is less than 20,000 m² ) of built up area but intended to construct 20809 m² . But the SEAC recommended the project as a case of violation and SEAA approved the recommendation and initiated violations proceedings against project proponent. (Minutes of 59^th Meeting SEIAA held on 27/9/2016 item no.59.15). If so why SEAC is taking a non-uniform approach for different projects? In the view of the above, the project is to be considered as a case of violation under the provisions of EIA Notification, 2006.”

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W.P.(C).No.3814/17

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A counter affidavit has been filed on behalf of the 2^nd respondent.

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Apart from repeating the contentions contained in Exhibit P12 order, it is stated in paragraph 6 of the counter affidavit as follows:-

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“It is further submitted that the project proponent while constructing the foundation of the building constructed the foundation of the building as per the structural design for the entire building with the built up area of 30618.57m² and therefore it is a willful violation on the part of project proponent. In other words, a project proponent who have carried out substantial construction and willfully limited the construction to a built up area less than 20,000m² is a deliberate attempt to circumvent the provision of EIA notification 2006. This is a case of vertical expansion, ie, construction vertically upwards and which is not permissible. In such a scenario environmental conditions to be prescribed while granting environmental clearance for a project like water and energy conservation measures and other such safeguards, which the regulatory authority impose cannot be retrofitted to the floors of the building which is already constructed. Further all environmental impacts and subsequent damages to the environmental is irreversible. If such a claim as recommended by the SEAC is approved, for all high-rise building construction projects, environmental clearance is not required till such time, the building reaches the built up area up to 20,000m² and which is illegal and ultra vires to the provisions of EIA notification 2006.”

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W.P.(C).No.3814/17

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It is therefore contended that the construction violated the provisions for prior environmental clearance and therefore no such clearance could be granted.

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An additional counter affidavit has been filed on 7.11.2017 stating that even in spite of the time limits specified in the EIA notification the Government of India, Ministry of Environmental Forest had issued notifications specifically pointing out that where construction is carried out without Environmental/CRZ clearance, such constructions are liable to be interdicted and could not be permitted without such clearance. It is therefore stated there can be no case of deemed clearance and the lapse of time as contended by the petitioner would not enable the petitioner to contend that he was permitted to make the construction even without the clearance.

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I have considered the contentions advanced in detail. It is the specific case of the petitioner that the notification provided that the 2^nd respondent has to consider the recommendation of the 3^rd respondent and convey its decision to the applicant within forty five days of the receipt of the recommendation of the 3^rd

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respondent 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 receipt of complete application with requisite documents. In cases where the State Level Expert Appraisal Committee disagrees with the recommendations, it shall request reconsideration within forty five days of the receipt of the recommendation stating reasons for the disagreement. An intimation of this decision shall be conveyed to the applicant. It is provided that in the event the decision is not communicated to the applicant as applicable, the applicant may proceed as if the environmental clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or the State Level Expert Appraisal Committee concerned. In the instant case, Exhibit P7 application for environmental clearance was dated 28.10.2015. By Exhibit P10 dated 16.11.2016, the State Level Expert Appraisal Committee favourably recommended Exhibit P7 subject to enhancement of Corporate Social Responsibility to Rs.15 lakhs per year. This was intimated on the web site of the 3^rd respondent. On 20.12.2016,

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the petitioner expressed willingness to increase the Corporate Social Responsibility. It is stated that when no communication was received from the 2^nd respondent within 45 days from Exhibit P10, the petitioner was entitled to deemed environmental clearance. Even in case of any disagreement with the recommendation of the 3^rd respondent, the 2^nd respondent could, at best only return the matter to the 3^rd respondent for reconsideration going by the EIA notification.

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Going by the merits of the reasons for the rejection as well, the respondents have no case that the petitioner had made any construction exceeding 20,000m² without obtaining an environmental clearance. The contention appears to be that the provision made for foundation to support the enhanced plinth area of more than 30000 m² and the provision available for proportionate enhanced parking violates the provision for prior environmental clearance. The learned Government Pleader was unable to point out any provision of law which provides that the foundation for a commercial building should be limited to the requirements for the plinth area as provided in a building permit. In the absence of any specification as to the maximum of

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foundation that can be provided for a building of this nature, I fail to see how the provision made for a foundation and parking area can be said to be in violation of the provision for environmental clearance. The reliance placed on the rejection of a request in the case of a residential apartment building is also misconceived because that was a case that the project itself was conceived with a floor area of more than 20000m² but environmental clearance was sought for only after construction of more than 19000m² was complete. In the instant case, Exhibit P1 building permit was granted for construction of 18,373.54m² for which no environmental clearance was required. Long before any construction in excess of 20000m² was undertaken, the petitioner had approached the 2^nd respondent with a request for environmental clearance. In the above view of the matter, the rejection of the request of environmental clearance on the grounds stated in Exhibit P12 is completely vitiated by want of application of mind. Exhibit P12 is therefore set aside. The 2^nd respondent is directed to take up and consider Exhibit P10 recommendation of the 3^rd respondent in accordance with the EIA Notification of 2006 and to pass orders on the same expeditiously, at any rate within one month from the date of

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receipt of a copy of this judgment. In case no such orders are passed, as directed above, the petitioner shall be entitled to proceed with the construction as if the environmental clearance has been granted on the conditions in Exhibit P10.

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The writ petition is ordered accordingly.

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Sd/- Anu Sivaraman, Judge

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Genesis Institute of Medical Science v. Kannur Municipal Corporation

Case brief

What is this about?

What did the court decide?

Genesis Institute of Medical Science v. Kannur Municipal Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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