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WWW.LIVELAW.IN 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. WWW.LIVELAW.IN 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 WWW.LIVELAW.IN 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: WWW.LIVELAW.IN 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 WWW.LIVELAW.IN W.P.(C) No.19580/19 -:5:- 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 WWW.LIVELAW.IN W.P.(C) No.19580/19 -:6:- 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 4th respondent KCZMA to the project of the 7th 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 7th 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 WWW.LIVELAW.IN W.P.(C) No.19580/19 -:7:- 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 WWW.LIVELAW.IN W.P.(C) No.19580/19 -:8:- 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 4th respondent stated that the proposed construction lies in CRZ-II category and that the application filed by the 7th respondent for WWW.LIVELAW.IN W.P.(C) No.19580/19 -:9:- construction was placed before the 75th 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 7th 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 WWW.LIVELAW.IN W.P.(C) No.19580/19 -:10:- final stages and once completed, the project would generate employment for thousands of persons.

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