A Misconception And Misreading Of EIA Notification: Kerala High Court Dismisses PIL Challenging Construction Of LuLu Mall In Capital City

The Kerala High Court on Friday dismissed a plea that challenged the construction of LuLu Mall, a popular shopping mall in the Capital city of Kerala on the ground that it was not eligible for environmental clearance (EC).

A Division Bench of Justice S.V. Bhatti and Justice Bechu Kurian while rejecting the public interest litigation, also observed that the State Environmental Impact Assessment Authority (SEIAA) was competent to issue the clearance. 

The petitioner had filed the plea questioning the grant of environmental clearance for the construction of the massive shopping mall in the capital city.  He challenged the environmental clearance granted for the construction and alleged CRZ violations. 

The PIL also contended that the EC was granted without jurisdiction or authority. To support this argument, he mentioned that the ongoing construction was of a building having a built-up area of 2.32 lakhs sq.m. However, according to the petitioner, the SEIAA had no authority to grant a clearance beyond 1.5 lakhs sq.m.

It was further alleged that construction falls within the prohibited distance from two water bodies and that the prescribed distance under the CRZ notification was not maintained. 

Findings of the Court:

The Bench initially considered the maintainability of the petition under Article 226 of the Constitution of India. It noticed that an appellate remedy was specifically provided against the grant of EC as per The National Green Tribunal Act, 2010.

Similarly, a perusal of Section 16(h) made it clear that the legislature intended to create a specialist body in the form of the National Green Tribunal to consider the validity of orders granting or rejecting applications for EC. As such, the Court remarked as such:

"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."

The Division Bench noted that the petitioner had not pleaded any reason for not invoking the statutory remedy under the Act. However, although non-recourse to statutory remedies normally renders a petition as not maintainable, considering the nature of the litigation and the approach adopted by the Constitutional courts in environmental issues, the Court took the view that this Court can consider the writ petition on merits. 

Therefore, the petition was held to be maintainable on the peculiar facts of this case. 

The primary question that arose in the case was the validity of SEIAA to issue the environmental clearance certificate. 

To answer this question, the Court examined the scheme of EIA notification and the four stages involved in the same. Upon perusal of these, the Bench agreed with the respondent that the construction project challenged in the litigation falls in category B and would require prior environmental clearance from SEIAA.

Additionally, it was found that the argument of the petitioner that the building with a built-up area of more than 1.5 lakhs sq.m. must obtain the EC from the Ministry of Environment and Forest is a misconception and a misreading of the EIA notification. 

On these grounds, the Court held that SEIAA had the jurisdiction and authority to issue the clearance. 

Regarding the petitioner's argument that the construction falls within the prohibited distance from two water bodies, the Bench stated that it arose from his 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." 

As such, the contentions raised in this writ petition were found to be bereft of any substance, and the writ petition was thereby rejected.

Case Title: M.K. Salim v. State of Kerala

Click Here To Read The Order