Point of Law: 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.

JUDGMENT :

BECHU KURIAN THOMAS, J.

1. 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 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 2nd respondent, it was pleaded that verification of the property had not revealed any encroachment into the Parvathy Puthanar Canal or into any Puramb