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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.V.BHATTI, BECHU KURIAN THOMAS, JJ.
M.K.Salim, S/o. Haji M.K. Ahamed Kunju – Appellant
Versus
State Of Kerala – Respondent
WP(C) No. 19580 of 2019
Decided on : 13-08-2021
Constitution of India,1950 - Article 226 - Green Tribunal Act - Section 16(h) - Environment (Protection) Act, 1986 - Sections 3(1) and 3(2)(v) - Environment (Protection) Rules, 1986 - Rule 5(3)(d) - Public interest litigations - Construction of a shopping mall - EC was granted without jurisdiction or authority - 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 - 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 - 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.
Finding of the Court:
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 4th respondent, though the HTL line was demarcated and approved - 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 - 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 - 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, 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.
Result: Writ Petition is dismissed
JUDGMENT :
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:
(ii) Call for the records relating to the grant of clearance by the 4th respondent CZMA 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 Puramboke
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