M.K. Salim v. State of Kerala

  • Order

Environment (Protection) Act, 1986 – Sections 3(1) and 3(2)(v) – Environment (Protection) Rules, 1986 – Rule 5(3)(d) – Environmental Impact Assessment (EIA) notification – Environmental Clearance (EC) – State Environmental Impact Assessment Authority (SEIAA) Argument that the building 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 a misconception and a misreading of the EIA notification – 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.

SEIAA was competent to consider the application of the 7th 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.

CRZ Violation – 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, the Court cannot in the absence of any contrary materials, disregard the said assertions and recommendation of the statutory authority.

Environment (Protection) Act, 1986 – Sections 3(1) and 3(2)(v) – Environment (Protection) Rules, 1986 – Rule 5(3)(d) – EIA notification.

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. ‘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 State Environmental Impact Assessment Authority (SEIAA) for granting or rejecting the EC sought for. [Para 24 & 25]

Constitution of India – Article 226 – National Green Tribunal Act, 2010 – Maintainability of writ petition against the grant of environmental clearance.

Appellate remedy is specifically provided against the grant of EC as per the Green Tribunal Act – writ petition is filed 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. 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.

Municipality Building Rules, 1999 (Kerala) – 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.

EIA notification – 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.

Municipality Building Rules, 1999 (Kerala) – Conservation of Paddy Land and Wetland Act, 2008 (Kerala) – Environmental Impact Assessment Notification, 2006 – Environmental Clearance (EC) – CRZ notification – Validity of State Environmental Impact Assessment Authority (SEIAA) to issue environmental clearance certificate – the EC has been granted by adopting a holistic approach balancing the interests of the environment as well as the necessity for development.

A massive shopping mall (Lulu 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.

Case Law Reference

  1. Rajeev Suri v. Delhi Development Authority, 2021 SCC Online SC 7
  2. In Re: Construction of Park at Noida near Okhla Bird Sanctuary v. Union of India, (2011) 1 SCC 744
  3. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
  4. Star Paper Mills Ltd. v. State of U.P., (2006) 10 SCC 201

Citations : 2021 (4) KCC 263 : 2021 (4) KHC 597