Kerala High Court
M.K.Salim vs State Of Kerala on 13 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 19580 OF 2019
PETITIONER:
M.K.SALIM,
AGED 62 YEARS, S/O. HAJI M.K. AHAMED KUNJU,
HAJI MANZIL, MAIN ROAD,
KOLLAM-691001.
BY ADV M.K.SALIM,(Party-In-Person)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM-695001.
3 THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY
(SEIAA),
KSRTC BUS TERMINAL COMPLEX,
4TH FLOOR, THAMPANOOR,
THIRUVANANTHAPURAM-695001,
REPRESENTED BY ITS MEMBER SECRETARY.
W.P.(C) No.19580/19 -:2:-
4 KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY
(KCZMA),
THIRUVANANTHAPURAM.
5 THE EXECUTIVE ENGINEER,
INLAND NAVIGATION OFFICE,
KALLADA HOUSE, ASRAMOM,
KOLLAM-691001.
6 THE SECRETARY,
THIRUVANANTHAPURAM MUNICIPAL CORPORATION,
CORPORATION OFFICE, MUSEUM JUNCTION,
THIRUVANANTHAPURAM-695001.
7 MR. NISHAD M.A.,
DIRECTOR,
M/S. LULU INTERNATIONAL SHOPPING MALL PVT. LTD.,
34/1000, NH-47, EDAPPALLY,
ERNAKULAM-688007.
8 THE UNION OF INDIA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
MINISTRY OF ENVIRONMENT AND FOREST,
PARYAVARAN BHAWAN,
NEW DELHI-110014.
BY ADVS.
SHRI.MOHAMMED RAFIQ, GP
SHRI.K.GOPALAKRISHNA KURUP, AG
SHRI.M.P.SREEKRISHNAN, SC, SEIAA AND SEAC
SRI.M.P.PRAKASH, SC, KCZMA
SRI.N.NANDAKUMARA MENON (SR.)
SRI.P.K.SURESH KUMAR (SR.)
Mr.JOSEPH RONY JOSE, CGC
SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION
SRI.K.P.SUDHEER
SRI.V.MANU, SENIOR GOVT. PLEADER
SRI.P.NARAYANAN, SENIOR GOVT. PLEADER
SMT.ANJALI NAIR
W.P.(C) No.19580/19 -:3:-
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 2.08.2021, THE COURT ON 13.8.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.19580/19 -:4:-
"C.R."
JUDGMENT
Dated this the 13th day of August, 2021
Bechu Kurian Thomas, J.
A massive shopping mall is under construction in the capital
city of Kerala - Thiruvananthapuram. Midway through the
construction, this public interest litigation was preferred, questioning
the grant of environmental clearance for the construction and for
various other reliefs. Petitioner questions the environmental
clearance granted for the construction and alleges CRZ violations.
2. The writ petitioner portrays himself to be a person who
espouses public causes and claims to have filed several public
interest litigations in this Court due to his social commitment. Writ
petitioner resides in the district of Kollam. He canvasses against the
grant of Environmental Clearance (for short 'the EC') for the
construction of a shopping mall at Thiruvananthapuram. Petitioner
alleges that the EC was granted without jurisdiction or authority. He
bases his contention on the authority of State Environmental Impact
Assessment Authority ('SEIAA' for brevity), to grant clearance for a
building having a built-up area of 2.32 lakhs sq.m. According to the
petitioner, SEIAA had no authority to grant such a clearance beyond
1.5 lakhs sq.m. Petitioner also alleges that the grant of EC after
categorizing the project as a Township Area Development Project
under clause 8(b) of the Environmental Impact Assessment
Notification, 2006 ('EIA notification' for brevity') was incorrect.
3. Petitioner further levels an allegation that the questioned
construction falls within the prohibited distance from two water bodies
- the Aakulam Lake and the Parvathy Puthanar Canal. According to
the petitioner, Aakulam Lake is a saline infiltrated water body from
which the prescribed distance under the CRZ notification is not
maintained. He also alleges violation of the distance rule under the
CRZ even in respect of the Parvathy Puthanar Canal and contends
that the construction is only a stone's throw away from the Canal.
Petitioner has raised yet another allegation that the construction in
question is on puramboke land, which is wrongly shown as private
land. Petitioner further contends that on account of the illegalities
that surround the issuance of Ext.P1 environmental clearance, he
approached the District Collector through Ext.P5 representation on
25.2.2019 and since there was no response, he was compelled to
move this Court seeking the following main reliefs:
"(i) Issue a writ of certiorari or other appropriate writ, order or direction
quashing Ext.P1.
(ii) Call for the records relating to the grant of clearance by the 4 th
respondent KCZMA to the project of the 7 th respondent and quash the
same.
(iii) Order appropriate damages against the 7th respondent as environmental
compensation to be paid.
(iv) Direct the 1st respondent to conduct a detailed enquiry and take
appropriate action against the responsible officers of respondents 3 to
6 for facilitating the grant of illegal EC to the 7 th respondent and order
appropriate costs to be paid.
(v) Issue a writ of mandamus or other appropriate order or direction to the
official respondents to take action to protect the ecology of the region
where the construction is going on with a fake certificate from the State
Environmental Impact Assessing Authority (SEIAA), flouting all the
rules prevailing in the country.
(vi) Issue a writ of mandamus or other appropriate order or direction
directing the District Collector to consider Ext.P5 and take appropriate
action against the 7th respondent."
4. Counter affidavits have been filed by respondents 2, 3, 4, 5
and 7, controverting the contentions raised in the writ petition. Since
the pleadings are relevant, we refer to the stand of the respondents
briefly.
5. In the counter affidavit filed on behalf of the 2 nd respondent,
it was pleaded that verification of the property had not revealed any
encroachment into the Parvathy Puthanar Canal or into any
Puramboke property. It was also pleaded that based upon the letter
issued by the Tahsildar, it was evident that the property of M/s.Lulu
Mall Private Limited was not over any Puramboke property and also
that on enquiry it was found that there was no violation of the
provisions of the Kerala Conservation of Paddy Land and Wetland
Act, 2008.
6. The 3rd respondent in its counter-affidavit pleaded that the
Lulu Mall, Thiruvananthapuram, is a project coming under clause
8(b) of the EIA notification and that the issuance of environmental
clearance was as per the existing rules. In the affidavit of the
Member Secretary of the 3rd respondent it was asserted that Ext.P1
was issued after scrupulously following the procedure prescribed
under clause 7 of the EIA notification and that the present challenge
raised after several years of issuance of Ext.P1 was not
maintainable, as, a remedy in the form of a statutory appeal was
available to any person aggrieved against the grant of EC. It was
pleaded that the area under construction does not fall within the
prohibited areas of CRZ Regulations and also that the site for
construction was outside CRZ III. The Authority further affirmed that
the SEIAA was competent to issue EC for projects of Township and
Area Development, covering an extent of more than 50 hectares or
built-up area above 1.5 lakh sq.m. It was further stated that after the
Kerala Coastal Zone Management Authority approved the proposal,
SEIAA considered the application for environmental clearance
objectively. While granting the environmental clearance, SEIAA had
taken note of the Indian Green Building Council (IGBC) rating, as
well as CRZ clearance and thereafter, had imposed conditions. It
was stated that SEIAA had even stipulated conditions providing a
green area in the no-development zone and thus the issuance of
environmental clearance was in accordance with law.
7. The 4th respondent affirmed through their counter affidavit
that the 7th respondent had submitted an application on 11.03.2016
for grant of a coastal regulation zone clearance for the construction
of a Hotel, a Convention Centre and a Shopping Complex project,
having a total built-up area of 2,32,400 sq.m with a project cost of
Rs.613.89 Crores. The proponent had submitted, along with the
application, a coastal regulation zone plan status report, prepared by
the Institute of Remote Sensing, Anna University, Chennai and a
NOC from the Kerala State Pollution Control Board. The 4 th
respondent stated that the proposed construction lies in CRZ-II
category and that the application filed by the 7 th respondent for
construction was placed before the 75 th meeting and after
consideration of various factors, the construction was permitted
outside the coastal regulation zone limit.
8. The 5th respondent had asserted in his counter-affidavit that
in the light of the specific observations of the revenue authorities that
there was no encroachment into the canal area of the Parvathy
Puthanar, the allegations are untenable. It was also stated that
subsequent to the issuance of notices to the 7 th respondent in the writ
petition, all documents were produced for verification. Thereafter
Ext.P9 letter was issued to the Tahsildar, who after verification, by
letter dated 04-10-2019 intimated that there were no encroachments
into the Canal or puramboke property and that the construction
alleged as an encroachment was into a private land covered by a
land assignment patta. The 6th respondent has filed a statement that
the local authority had issued a building permit on 27-04-2017, after
verification of all the documents as per the Kerala Municipality
Building Rules, 1999.
9. The 7th respondent, who is the proponent of the project,
pleaded that the construction of the shopping mall has reached its
final stages and once completed, the project would generate
employment for thousands of persons. It was further pointed out that
the writ petition was instituted on misconceptions, especially on the
jurisdiction and authority of the SEIAA and that constructions above
1,50,000 sq.ms. would fall under Township and Area Development
Project and that there is a quantitative correlation between the two
sub-clauses of clause 8 of the EIA notification. According to the 7 th
respondent, the environmental clearance was granted by SEIAA as
per Ext.P1 in accordance with law and that for a building having a
built-up area of 2,32,400 sq.m, which falls under the category 8(b) of
the EIA notification, the SEIAA is vested with the authority to grant
environmental clearance. It was also pointed out that the area of
construction is at a distance of more than 100 metres from the high
tide line (HTL) of Aakulam Lake, which was beyond the limits of CRZ
restrictions, while the Parvathy Puthanar Canal known as T.S.Canal
has a width of only 20 metres and the construction was beyond the
distance of 20 metres. The 7th respondent further stated that by virtue
of the CRZ zone notification prevalent at the time of grant of
clearance, the distance of the no-development zone was either 100
metres or width of the canal, whichever was less. It was thus stated
that the construction, at a distance of more than 20 metres from the
canal and commenced after getting clearance from the Coastal Zone
Management Authority, as per Ext.R7(e) was not illegal or
objectionable. The 7th respondent further asserted that on the
landward side of the canal, they have not carried out any
constructions to the extent of the canal width. Even from the
Aakulam lake, according to the 7th respondent, they have not made
any constructions within 100 metres of the lake. Ext.R7(f) is the
sketch prepared by the Institute of Remote Sensing, Anna University.
It was also pleaded that no constructions have been carried out by
the 7th respondent contrary to any provision of law.
10. Reply affidavits have been filed by the writ petitioner
reiterating his contentions in the writ petition and also produced
Ext.P8 to Ext.P16. Referring to certain letters issued by the Assistant
Engineer of the Indian Navigation, it was stated that constructions
were being carried out after encroaching into the TS Canal.
11. The 7th respondent has filed an additional affidavit
producing documents to bring to the notice of the Court that during
the pendency of the writ petition, the petitioner had been interfering
with the administration of justice by giving repeated interviews to the
media, making allegations against the Court as well as the other
officials.
12. When the matter came up for consideration on 16.2.2021,
this Court directed the 2nd respondent District Collector to file an
affidavit with particular reference to the compliance of the general
and special conditions imposed in the environmental clearance
certificate. Consequent to the said direction, an additional counter
affidavit has been filed by the 2 nd respondent on 28.2.2021 detailing
the compliance status of each of the conditions stipulated in Ext.P1.
At this stage, we note that most of the conditions have been
complied with either fully or partly. There are no serious violations of
the conditions stipulated in Ext.P1. Further, an additional counter
affidavit has also been filed by the 2 nd respondent on the compliance
noted by her or through her delegates as on 30.3.2021. We record
our satisfaction with the report as well as the compliance of the
conditions, as expressed in the status report.
13. Petitioner argued the case as a party in person. We also
heard Sri.K.Gopalakrishna Kurup, learned Advocate General
assisted by Sri.V.Manu, learned Senior Government Pleader on
behalf of respondents 1 and 2, Adv. M.P.Sreekrishnan on behalf of
the 3rd respondent, Adv. M.P. Prakash on behalf of the 4 th respondent,
Senior Advocate Sri.N.Nandakumara Menon on behalf of the 6 th
respondent and Senior Advocate P.K.Suresh Kumar, duly instructed
by Adv.K.P.Sudheer on behalf of the 7th respondent.
14. On a perusal of the pleadings, we notice that none of the
respondents have questioned the locus standi of the writ petitioner.
In the absence of any challenge to the locus standi of the petitioner
to file this writ petition, we proceed to consider the issues that arise
for our consideration. The primary question to be considered in the
instant case is on the validity of SEIAA to issue Ext.P1 environmental
clearance certificate. Before we consider the question of validity of
Ext.P1, it is necessary to consider the maintainability of this writ
petition under Article 226 of the Constitution of India against the grant
of Ext.P1 environmental clearance.
15. Ext.P1 was issued on 04-10-2016. Pursuant to the grant of
EC, the project proponent commenced construction of the building
after obtaining a building permit from the local authority. The building
permit was issued by the 6th respondent on 27-04-2017 with permit
number ZK2/BA258/16. The writ petition was filed on 15-07-2019,
almost 33 months after the issuance of Ext.P1. We notice that none
has preferred to challenge the grant of building permit in any mode
known to law. The local authority has also not cancelled or
withdrawn the building permit. As the building permit remains valid
as on date, it has to be presumed that the construction of the building
is without any infraction of the building rules.
16. Petitioner has preferred to challenge Ext.P1 EC in this
proceeding under Article 226. We notice that an appellate remedy is
specifically provided against the grant of EC as per The National
Green Tribunal Act, 2010 (for short 'the Green Tribunal Act'). The
statute mentioned above provides for the establishment of a National
Green Tribunal for the effective and expeditious disposal of cases
relating to environmental protection including enforcement of any
legal right relating to the environment. Chapter III of the Green
Tribunal Act deals with jurisdiction, powers and proceedings of the
Tribunal. Section 16 provides for the appellate jurisdiction of the
Tribunal.
17. Section 16(h) of the Green Tribunal Act is relevant for the
instant case and the same is extracted as below:
S.16. Any person aggrieved by,-
(h) an order made, on or after the commencement of the National
Green Tribunal Act, 2010, granting environmental clearance in
the area in which any industries, operations or processes or
class of industries, operations and processes shall not be carried
out or shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986 (29 of 1986).
............ may, within a period of 30 days from the date on
which the order or decision or direction or determination is
communicated to him, prefer an appeal to the Tribunal.
Provided that the Tribunal may, if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed under the section within
a period not exceeding 60 days.
18. A perusal of the above provision makes it clear that the
legislature intended to create a specialist body in the form of National
Green Tribunal to consider the validity of orders granting or rejecting
applications for EC. The remedy of an appeal with the Tribunal under
the Green Act gives power to consider the grant in its true
perspective with opportunities to consider the correctness or
otherwise of the decision in a holistic approach. It is seen from the
pleadings in the case that the petitioner became aware of Ext.P1 at
least by 25-02-2019 when an email was sent to the District Collector,
complaining about the alleged illegalities and questioning the grant of
the environmental clearance certificate. The writ petition is filed only
on 15-07-2019 without even invoking the appellate remedy before
the National Green Tribunal. Petitioner has not pleaded the reasons
for not invoking the statutory remedy under the Green Act. As on the
date of filing the writ petition, his statutory remedy became barred by
limitation under the proviso to section 16 of the Green Tribunal Act.
19. When a statute creates a right and the remedy is also
created for those aggrieved, recourse must be made to that remedy
before invoking the extraordinary and prerogative writ jurisdiction of
the High Court under Article 226 of the Constitution of India. As has
been reiterated by the Supreme Court, the normal rule is that the writ
petition should not be entertained when statutory remedies are
available under the legislation concerned, unless exceptional cases
are made out. Reference can be made to Shivanand Gaurishankar
Baswanti v. Laxmi Vishnu Textile Mills and Others [(2008) 13
SCC 323] and also Star Paper Mills Ltd. v. State of U.P and
Others [(2006) 10 SCC 201].
20. The appellate remedy under the Green Tribunal Act is
efficacious and any person aggrieved can prefer appeal against the
grant of EC. The appellate remedy was available to the petitioner and
no reasons have been stated for bypassing the statutory appeal.
Moreover, an appreciation of various factual matters are also
involved in the nature of challenge raised against Ext.P1, which could
be effectively adjudicated only in an appeal. Failure to approach the
statutory authority within the stipulated time must normally renders
this writ petition as not maintainable. Though this writ petition merits
dismissal solely on the ground of non-recourse to statutory remedies,
taking into consideration the nature of this litigation and the approach
adopted by the Constitutional courts in environmental issues, we are
of the view that this Court can consider the writ petition on merits.
We also bear in mind that the cause put forth in the case would be
rendered otiose, if the parties are relegated to the appellate remedy
after the writ petition was admitted and kept pending on the files of
this Court for the last two years. Thus we hold that this writ petition is
maintainable on the peculiar facts of this case. While disposing this
writ petition on merits by this judgment, we shall not be understood
as having made a departure from the general rule, i.e, writ petitions
will not be entertained when alternate statutory remedies are
available.
21. Ext.P15 was the appendix attached to the application filed
by the 7th respondent for grant of EC. In column No.9 of Ext.P15, it is
mentioned that the application is filed under clause 8(a) of the
Schedule to the EIA notification under the heading 'Building and
Construction Projects'. However, in the counter affidavit filed by the
3rd respondent, it was specifically stated that the project comes under
category 8(b) of the EIA notification and the project was approved as
a B1 project as per the rules. Since the writ petitioner has
questioned the authority of SEIAA to consider the application for EC
submitted by the 7th respondent and grant of EC under item 8(b) of
the Schedule to the EIA notification, It is appropriate to consider the
scheme and purport of the notification.
22. The EIA notification was enacted in exercise of the powers
under Sections 3(1) and 3(2)(v) of the Environment (Protection) Act,
1986 read with Rule 5(3)(d) of the Environment (Protection) Rules,
1986. Under the regime of EIA notification, all new projects or
activities or expansion or modernisation of existing projects or
activities listed in the Schedule can be undertaken only after a prior
environmental clearance is obtained from the Central Government or
the State Level Environment Impact Assessment Authority.
23. The EIA notification provides for in Clause 2 that, prior EC
from the regulatory authority concerned is required for projects or
activities that falls under two separate categories referred to as
category A and category B. Categorization is based on the spatial
extent of potential impacts and potential impacts on human health
and natural and man-made resources as specified in Clause 4. As
per Clause 2 of EIA notification, before any construction work or land
preparation is started on a project or activity, a prior EC must be
obtained. The aforesaid clearance has to be obtained from the
Ministry of Environment and Forest of Central Government for
projects or activities falling under category A and at the State level
from the SEIAA for matters falling under category B. A reading of the
notification will make it clear that the SEIAA has to consider the
applications for prior EC through the procedure prescribed in Clause
6. There is a further sub-category called Category B1 and B2.
Projects that fall in Category B1 are those projects which require an
Environmental Impact Assessment study and consequent Report
while category B2 comprises projects that do not require
Environmental Impact Assessment.
24. Under the scheme of EIA notification, an application for
grant of environmental clearance has to pass through four stages.
These four stages are mentioned in clause 7 of the notification and
they are Stage I. Screening, Stage II. Scoping, Stage III. Public
Consultation, and Stage IV. Appraisal.
25. 'Screening' is the first stage where the State Expert
Appraisal Committee (SEAC) scrutinizes the application and
determines whether the project requires further environmental
studies for preparing environmental impact assessment (EIA). It is at
this stage, categorization of the project as B1 or B2 happens. Once
the first stage is completed, the projects categorized as B1 goes to
Stage II called 'Scoping'. At the stage of Scoping, the SEAC
determines the terms of reference (TOR). To enable it to determine
the TOR, it can even appoint a sub-committee to conduct a site visit.
There is an exclusion from Scoping for projects listed as Category B
in respect of Construction or Township or Commercial Complexes or
Housing in item 8 of the Schedule. The next stage is referred to as
the 'Public Consultation' where the concerns of the locals who are
affected or who have a stake in the environmental impact are
ascertained. Though all category A and B projects require public
consultation, there is yet again an exclusion for projects listed as item
8(a) and item 8(b) to the schedule apart from a few other projects.
The fourth stage is the 'Appraisal' where the SEAC after detailed
scrutiny makes a recommendation to the SEIAA for granting or
rejecting the EC sought for.
26. The schedule to the EIA notification lists the projects or
activities that require prior environmental clearance. Clause 8(b) of
the EIA notification is relevant and is extracted as below:
SCHEDULE
(See Paras 2 and 7)
List of Projects or Activities Requiring Prior
Environmental Clearance
Project or Activity Category with threshold limit Conditions if any
A B
8 Building/Construction projects/Area development projects and
Township
8(a) Building and > 20,000 sq.m. and < *(built-up area for covered
construction 1,50,000 sq.m. of built- construction; in the case of
projects up area* facilities open to the sky, it
will be the activity area)
8(b) Townships and Covering an area > 50 ** All projects under item
area ha and or built-up area > 8(b) shall be appraised as
development 1,50,000 sq.m** Category B1
projects
[The built up area for the purpose of this notification is defined as "the
built up or covered area for all floors put together including basement(s)
and other service areas, which are proposed in the building/construction
projects".]
Note:-
General Condition (GC):
[Any project or activity specified in Category 'B' will be treated as
Category A, if located in whole or in part within 10 km from the
boundary of: (i) Protected Areas notified under the Wild Life (Protection)
Act, 1972, (ii) Critically Polluted areas as notified* by the Central
Pollution Control Board from time to time, (iii) Notified Eco-sensitive
areas, (iv) inter-State boundaries and international boundaries.
Provided that the requirement regarding distance of 10 km of the
inter-State boundaries can be reduced or completely done away with the
agreement between the respective States or UT's sharing the common
boundary in case the activity does not fall within 10 kilometres of the
areas mentioned at item (i) (ii) and (iii) above.
27. It can be understood from the above discussion that the
construction project challenged in this litigation falls in category B
and would require prior environmental clearance from SEIAA. The
argument of the writ petitioner that the building of the 7 th respondent
having a built-up area of more than 1.5 lakhs sq.m. must obtain the
EC from the Ministry of Environment and Forest, is, according to us,
a misconception and a misreading of the EIA notification. On a
perusal of the above extracted tabular column and the above
discussed provisions of EIA notification, it is obvious that a project
having a built-up area of more than 1.5 lakhs sq.m. can also fall
under category B. If it is a category B project, the SEIAA is the
authority to grant the EC. It is a misreading of the notification to
contend that every construction project with a built-up area of more
than 1.5 lakhs sq.m, automatically falls within the jurisdiction of the
MoEF and SEIAA loses its jurisdiction or authority. In fact, the
Supreme Court has interpreted the EIA notification to mean that
Constructions above a built-up area of 1.5 lakhs sq.m. by virtue of
their sheer magnitude will qualify as a Township Project by itself.
28. The decision of the Supreme Court in In Re: Construction
of Park at Noida near Okhla Bird Sanctuary v. Union of India and
Others [(2011) 1 SCC 744] considers the distinction between
clauses 8(a) and 8(b) of the EIA notification. For an easier
appreciation, paragraphs 65 and 66 of the above decision are
extracted as below:
65. It is extremely difficult to accept the contentions that the
categorisation under Items 8(a) and 8(b) has no bearing on
the nature and character of the project and is based purely
on the built-up area. A building and construction project is
nothing but addition of structures over the land. A township
project is the development of a new area for residential,
commercial or industrial use. A township project is different
both quantitatively and qualitatively from a mere building
and construction project. Further, an area development
project may be connected with the township development
project and maybe its first stage when grounds are cleared,
roads and pathways are laid out and provisions are made
for drainage, sewage, electricity and telephone lines and the
whole range of other civic infrastructure. Or an area
development project may be completely independent of any
township development project as in case of creating an
artificial lake, or an urban forest or setting up a zoological or
botanical park or a recreational, amusement or a theme
park.
66. The illustration given by Mr.Bhushan may be correct to
an extent. Constructions with built-up area in excess of
1,50,000 would be huge by any standard and in that case
the project by virtue of sheer magnitude would qualify as
township development project. To that limited extent there
may be a quantitative correlation between Items 8(a) and
8(b). But it must be realised that the converse of the
illustration given by Mr.Bhushan may not be true. For
example, a project which is by its nature and character an
"area development project" would not become a "building
and construction project" simply because it falls short of the
threshold mark under Item 8(b) but comes within the area
specified in Item 8(a). The essential difference between
Items 8(a) and 8(b) lies not only in the different magnitudes
but in the difference in the nature and character of the
projects enumerated thereunder.
29. In a recent decision in Rajeev Suri v. Delhi Development
Authority and Ors. (2021 SCC Online SC 7) known as the Central
Vista Project Case, the Supreme Court held that the basis of
categorisation of projects and activities under the EIA notification lies
in the expanse of the built-up area of the proposed project. The court
held in paragraph 340 as follows:
"The Schedule attached with the Notification incorporates a
"List of Projects or Activities Requiring Prior Environmental
Clearance". Item 8 in category B is divided into two sub-
categories - item 8(a) titled "Building and Construction
projects" and item 8(b) titled "townships and Area
Development projects". The distinction lies in the expanse
of built-up area of the proposed project."
30. In view of the above discussion, we are of the view that
SEIAA was competent to consider the application of the 7 th
respondent for grant of EC for constructing the shopping mall having
an extent of more than 1.5 sq.m. of built-up space. We hold that
SEIAA had the jurisdiction and authority to issue Ext.P1.
31. A perusal of Ext.P1 reveals that the 3 rd respondent had
considered all the relevant aspects for the grant of EC. The
environmental impact assessment report and the recommendation of
the KCZMA were considered. Thereafter the recommendation of
SEAC was also considered. It was thus after satisfying themselves
of full compliance of all legal requirements, that SEIAA decided to
grant EC. We notice from Ext.P1 that the SEIAA considered the
proposal in the meeting held on 06-07-2016 and deputed a sub-
committee to inspect the site. After the site visit on 15-06-2016, the
project proponent made a presentation to the committee on
17-06-2016 where the queries made during the site visit were
clarified. Yet again the SEIAA considered the proposal on
29-06-2016, 16-07-2016, 23-07-2016, and finally on 08-09-2016
when it was decided to grant EC. Several conditions were
incorporated while granting the EC which included general
conditions, specific conditions and additional conditions, apart from
green conditions. Thus the 3 rd respondent had, while granting EC to
the construction for the shopping mall and other related buildings,
imposed innumerable conditions having regard to environmental
management and mitigation of adverse impacts.
32. It is understood from a reading of Ext.P1 that the SEIAA
had decided to grant EC, after considering the entire perspective of
the project vis-a-vis the environment. As noted by us earlier, the
expert appraisal committee - SEAC considered the details of the
project, a sub-committee visited the site, the project proponent made
a presentation to clarify the doubts and then, the SEAC
recommended the grant of EC. Pursuant to the said
recommendation, SEIAA granted the EC incorporating the conditions
stipulated by SEAC as well as further conditions as it deemed fit. The
procedure prescribed for the grant of EC has been scrupulously
complied with by SEIAA.
33. We also note that the principle of sustainable development
and the precautionary principle are imprinted in the conditions
imposed while granting EC. The stipulation that compliance of
conditions shall be monitored by SEIAA, as well as the MoEF at
Bangalore, is stipulated as a measure of control over any possible
violations. Further, any violation by the proponent can even be
reported to the District Collector who can initiate legal action under
the Environmental (Protection) Act. On an appreciation of the
conditions stipulated in the EC, We are of the considered view that
the EC has been granted by adopting a holistic approach balancing
the interests of the environment as well as the necessity for
development. It is needless to observe that monitoring of compliance
of conditions by SEIAA and the District Collector, as stipulated in
Ext.P1 are measures of the precautionary principle. We do not find
any illegality or irregularity in the grant of Ext.P1 EC.
34. The next allegation against the construction is based on
CRZ violations. Petitioner has raised a two-pronged attack regarding
CRZ violation against the construction in question. The first objection
is regarding the Aakulam Lake, while the second objection is based
on the proximity to the Parvathy Puthanar Canal. Petitioner contends
that the construction area falls within the prohibited distance under
the CRZ notification from the Aakulam Lake as well as the Parvathy
Puthanar Canal.
35. The Kerala Coastal Zone Management Authority, which is
arrayed as the 4th respondent, has affirmed that the project was
approved by the said authority after verifying the details submitted by
the 7th respondent. According to the 4 th respondent, though the HTL
line was demarcated and approved in 1996 as per the CRZ
notification of 1991, a new Coastal Zone Management Plan was
prepared as per CRZ notification of 2011. This subsequent plan was
approved only on 28.02.2019 and till the approval, the plan under
1991 notification was in force. It is understood from the pleadings
that the Coastal Zone Management Authority looked at it from
another angle, in the sense that, even if the project fell under CRZ III
category, still there could be no objection to the construction as the
distance between the Aakulam Lake and the proposed construction
was beyond 100 metres. Similarly as regards the Parvathy Puthanar
Canal that runs near to the proposed construction, its width being
less than 25 metres, the construction did not fall within the prohibited
distance under the CRZ notification. It is evident that the petitioner is
under a misconception that under CRZ regulations the prohibited
distance applies equally from every water body. From the Parvathy
Puthanar Canal the prohibited distance is to be measured as 100
metres or width of the canal towards the landward side, whichever is
less. When the Coastal Zone Management Authority asserts that
while granting approval/recommendations for the project, they had
ascertained the width and the distance measured and found the
questioned construction to be falling beyond the prohibited distance,
this Court cannot in the absence of any contrary materials, disregard
the said assertions and recommendation of the statutory authority.
Petitioner has not placed any material to disprove the assertion of the
KCZMA. In the above circumstances, we hold that the construction
in question does not fall within the prohibited distance under the CRZ
notification.
36. According to the petitioner, Ext.P5, filed by him before the
District Collector was not considered. Since we have already
considered the main objections raised by the petitioner in Ext.P5 and
found that the project does not violate either the EIA notification or
the CRZ regulations, we are of the view that the said relief for a
direction to the District Collector to consider Ext.P5, does not serve
any purpose.
37. In view of the above consideration and discussion, we are
of the view that the contentions raised in this writ petition are bereft of
any substance, and the writ petition is liable to be rejected.
Accordingly, we dismiss the writ petition. In the nature of the
circumstances of the case, there shall be no order as to costs.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE EC
NO.1047/SEIAA/ECI/899/2016 DATED
14/10/2016 ISSUED BY THE SEIAA.
EXHIBIT P2 TRUE COPY OF THE RTI REPLY
NO.716/A1/2019/SEIAA DATED 14/03/2019
ISSUED BY SEIAA TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF SATELLITE MAP DOWNLOADED
FROM GOOGLE.
EXHIBIT P4 TRUE COPY OF THE REPORT
NO.PCB/HO.EEI/NGT/673/2018 DATED
17/04/2019 ISSUED BY THE STATE POLLUTION
CONTROL BOARD TO THE CENTRAL POLLUTION
CONTROL BOARD.
EXHIBIT P5 TRUE COPY OF THE EMAIL DATED 25/02/2019
SENT TO THE COLLECTOR TVM.
EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED
25/03/2019 ISSUED BY COLLECTORATE,
THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE NEWS EXCERPTS FROM THE
TIMES OF INDIA DATED 18/03/2019.
EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED BY THE
5TH RESPONDENT TO THE 7TH RESPONDENT
WITH PHOTOGRAPH (WITH ENGLISH
TRANSLATION)
EXHIBIT P9 TRUE COPY OF THE LETTERS ISSUED BY THE
5TH RESPONDENT TO THE TAHASILDAR (WITH
ENGLISH TRANSLATION)
EXHIBIT P10 TRUE COPY OF THE NEWS ITEM DATED
12.12.2018 BY RESEARCH & PUBLICATIONS
WING
EXHIBIT P11 TRUE COPY OF THE STATEMENT WITH COVERING
LETTER SENT TO ADVOCATE GENERAL
EXHIBIT P12 TRUE COPY OF THE LETTER SENT TO THE 4TH
RESPONDENT BY 5TH RESPONDENT KCZMA
BEARING NO A5-1608/2019 DATED 21.8.2019
EXHIBIT P13 TRUE COPY OF THE NOTICE SENT BY 5TH
RESPONDENT TO SEIAA, NO A5-1608/2019
DATED 17.8.2019
EXHIBIT P14 TRUE COPY OF THE LOCATION SKETCH FROM
THE VILLAGE OFFICE,THE SURVEY NO AND CRZ
MAP PREPARED BY THE NCESS (WITH ENGLISH
TRANSLATION)
EXHIBIT P15 TRUE COPY OF THE APPLICATION WITH
APPENDIX
EXHIBIT P16 TRUE COPY OF THE SURVEY DETAILS OF THE
LAND BELONGING TO THE 7TH RESPONDENT
EXHIBIT P17 TRUE COPIES OF THE LETTER DATED
21/10/2019 SENT FROM CHIEF ENGINEER TO
EXECUTIVE ENGINEER ALONG WITH ENGLISH
TRANSLATION
EXHIBIT P18 TRUE COPIES OF THE LETTER SENT BY 4TH
RESPONDENT TO PETITIONER DATED 6/3/2019
ALONG WITH ENGLISH TRANSLATION.
RESPONDENT EXHIBITS
EXHIBIT R7(a) TRUE COPY OF SCHEDULE ATTACHED TO THE
2006 NOTIFICATION AS IT STOOD AT THE
TIME OF ITS ISSUANCE.
EXHIBIT R7(b) TRUE COPY OF NOTIFICATION NO.SO 3252(E)
DATED 22/12/2014 ISSUED BY MINISTRY OF
ENVIRONMENT, FOREST AND ALIMATE CHANGE
EXHIBIT R7(c) TRUE COPY OF NOTIFICATION NO.SO 3999(E)
DATED 9/12/2016 ISSUED BY MINISTRY OF
ENVIRONMENT, FOREST AND CLIMATE CHANGE.
EXHIBIT R7(d) TRUE COPY OF OFFICE MEMORANDUM (F.NO.3-
150/2017-IA-111) ISSUED BY THE
GOVERNMENT OF INDIA, MINISTRY OF
ENVIRONMENT, FOREST AND CLIMATE CHANGE
ON 3/4/2018
EXHIBIT R7(e) TRUE COPY OF THE GRANT OF APPROVAL
NO.2966/A3/16/KCZMA/S&TD DATED 30/4/2016
ISSUED BY THE KERALA COASTAL ZONE
MANAGEMENT AUTHORITY.
EXHIBIT R7(f) TRUE COPY OF THE CRZ STATUS REPORT OF
THE PROJECT SITE PREPARED BY THE
INSTITUTE OF REMOTE SENSING, ANNA
UNIVERSITY, CHENNAI.
EXHIBIT R7(g) TRUE COPY OF SKETCH DULY SIGNED BY THE
VILLAGE OFFICER, KADAKAMPALLY ALONG WITH
ITS ENGLISH TRANSLATION
EXHIBIT R7(h) TRUE COPY OF SKETCH ISSUED BY THE
ADDITIONAL TAHSILDAR, THIRUVANANTHAPURAM
SHOWING THE PLOT DIMENSIONS AND ALL
SURVEY NUMBERS.
EXHIBIT R7(i) TRUE COPY OF SKETCH SHOWING THE BOUNDARY
PILLARS OF SITE WITH GEO CO-ORDINATES
(LATITUED AND LONGITUDE)
EXHIBIT R7(j) TRUE COPY OF OFFICE MEMORANDUM
NO.J11013/5/2010-IA-II(I) DATED
24/5/2011 ISSUED BY THE MINISTRY OF
ENVIRONMENT AND FORESTS, GOVERNMENT OF
INDIA.
EXHIBIT R7(k) TRUE COPY OF OFFICE MEMORANDUM DATED
15/3/2010 ALONG WITH LIST OF CRITICALLY
POLLUTED AREA AS IDENTIFIED BY CPCB.
EXHIBIT R7(l) TRUE COPY OF NOTIFICATION PUBLISHED IN
MALAYALA MANORAMA DAILY DATED 13/10/2016
(ENGLISH TRANSLATION OF EXT.R7(1) NOTICE
IS GIVEN IN EXHINIT R7(M).
EXHIBIT R7(m) TRUE COPY OF NOTIFICATION PUBLISHED IN
'THE HINDU'DAILY DATED 13/10/2016
EXHIBIT R7(n) TRUE COPY OF INFORMATION ISSUED UNDER
RIGHT TO INFORMATION ACT BY THE PUBLIC
INFORMATION OFFICER, OFFICE OF THE CHIEF
ENGINEER ALONG WITH ENGLISH TRANSLATION
OF MALAYALAM PORTION
EXHIBIT R7(o) THE COPY OF RELEVANT PAGES OF THE
MINUTES OF MEETING OF 98TH SEIAA (ITEM
NO.98.21)
EXHIBIT R7(p) TRUE COPY OF APPROVED COASTAL ZONE
MANAGEMENT PLAN (CZMP)
EXHIBIT R7(q) TRUE COPY OF OFFICE MEMORANDUM DATED
19.6.2013 ISSUED BY GOVT. OF INDIA,
MINISTRY OF ENVIRONMENT & FORESTS
EXHIBIT R2(a) TRUE PHOTOCOPY OF THE REPORT DATED
20/09/2019 OF THE VILLAGE OFFICER,
KADAKAMPALLY, WITH TRUE TRANSLATION.
EXHIBIT R2(b) TRUE PHOTOCOPY OF THE REPORT DATED
28/09/2019 OF THE TALUK SURVEYOR,
THIRUVANANTHAPURAM, WITH TRUE
TRANSLATION.
EXHIBIT R2(c) TRUE PHOTOCOPY OF THE REPORT DATED
3/10/2019 OF THE HEAD SURVEYOR, TALUK
OFFICE, THIRUVANANTHAPURAM, WITH TRUE
TRANSLATION.
EXHIBIT R2(d) TRUE PHOTOCOPY OF THE LETTER DATED
04/10/2019 OF THE TAHSILDAR (LAND
RECORDS), THIRUVANANTHAPURAM TO THE
FIFTH RESPONDENT WITH TRUE TRANSLATION.
EXHIBIT R2(e) TRUE PHOTOCOPY OF THE LETTER DATED
14/10/2019 ISSUED BY THE FIFTH
RESPONDENT TO THE TAHSILDAR (LAND
RECORDS), THIRUVANANTHAPURAM WITH TRUE
TRANSLATION.
EXHIBIT R2(f) TRUE PHOTOCOPY OF THE LETTER DATED
18/10/2019 OF THE TAHSILDAR (LAND
RECORDS), THIRUVANANTHAPURAM TO THE
FIFTH RESPONDENT WITH TRUE TRANSLATION.
EXHIBIT R2(g) TRUE PHOTOCOPY OF THE REPORT DATED
05/02/2020.
EXHIBIT R2(h) TRUE COPY OF THE REPORT OF COMPLIANCE ON
CONDITIONS STIPULATED IN ENVIRONMENTAL
CLEARANCE (EC) ISSUED BY SEIAA TO
MM/S.LULU INTERNATIONAL HYPER MALL AT
KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM
MUNICIPAL CORPORATION VIDE ORDER
NO:1047/SEIAA/ECI/899/2016 DATED
4/10/2016
EXHIBIT R2(i) REPORT OF COMPLIANCE ON CONDITIONS
STIPULATED IN ENVIRONMENTAL CLEARANCE
(EC) ISSUED BY SEIAA TO M/S.LULU
INTERNATIONAL HYPER MALL AT KADAKAMPALLY
VILLAGE, THIRUVANANTHAPURAM MUNICIPAL
CORPORATION VIDE ORDER
NO:1047/SEIAA/ECI/899/2016 DATED
4/10/2016 (SECOND REPORT)
EXHIBIT R3(a): A TRUE COPY OF THE REPORT, DATED
30/04/2016.
EXHIBIT R3(b): A TRUE COPY OF THE TAX RECEIPTS PRODUCED
BY THE 7TH RESPONDENT.
EXHIBIT R3(c): A TRUE COPY OF THE THANDAPER RECORDS
PRODUCED BY THE 7TH RESPONDENT BEFORE
THE 3RD RESPONDENT.
EXHIBIT R5(a) TRUE PHOTOCOPY OF THE LETTER DATED
4/10/2019 FROM THE TAHSILDAR (LAND
RECORDS), THIRUVANANTHAPURAM TO THE
ASSISTANT ENGINEER, INLAND NAVIGATION
SECTION III, CHAKKA, WITH TRUE
TRANSLATION
EXHIBIT R7(r) TRUE COPY OF INTERVIEW PUBLISHED IN
KERALASABDAM IN JANUARY, 2020 ALONG WITH
A TRANSLATED VERSION OF THE RELEVANT
PORTIONS
EXHIBIT R7(s) TRUE COPY OF VIDEOGRAPH IN THE FORM OF
COMPACT DISC ALONG WITH ITS CONTENTS IN
WRITING
EXHIBIT R7(t) TRUE COPY OF VIDEOGRAPH IN THE FORM OF
COMACT DISC ALONG WITH ITS CONTENTS IN
WRITING
EXHIBIT R7(u) TRUE COPY OF STATUS REPORT FORWARDED BY
THE PROJECT PROPONENT TO THE DISTRICT
COLLECTOR (WITHOUT ANNEXURES) AS ON
25.3.2021
EXHIBIT R7(v) TRUE COPIES OF APPROVAL LETTER AND
EXTENSION LETTERS ISSUED BY MINISTRY OF
ROAD TRANSPORT AND HIGHWAY, GOVT. OF
INDIA ALONG WITH LETTER SEEKING
EXTENSION
EXHIBIT R7(w) TRUE COPY OF REGISTERED GIFT DEED VIDE
NO.625/2020 DATED 26.2.2020 OF SRO,
THIRUVANANTHAPURAM ALONG WITH PHOTOGRAPH
OF THE FOOT OVER BRIDGE
EXHIBIT R7(x) TRUE COPY OF LETTER DATED 18.1.2021
ISSUED BY THE SECRETARY, PUBLIC WORKS
DEPARTMET ALONG WITH MINUTES OF MEETING
HELD ON 30.12.2020 REGARDING ISSUES
RELATED TO ANTICIPATED TRAFFIC
CONGESTION NEAR LULU MALL, TRIVANDRUM
EXHIBIT R7(y) TRUE COPY OF ESTIMATE OF THE WORK
RELATED TO THE COVERING OF DRAIN
RECEIVED FROM NHAI ALONG WITH THE SKETCH
SHOWNG THE CROSS SECTION OF THE SERVICE
ROAD
EXHIBIT R7(z) TRUE COPY OF COMMUNICATION DATED
16.1.2021 BETWEEN OFFICERS OF NHAI AND
PWD
