Lulu Mall justifies grant of Environmental Clearance for Tvm Project, claims it is a township

After the Kerala High Court issued notice in plea challenging the Environmental Clearance granted for the development of a Lulu Mall in Thiruvanathapuram, Lulu has filed a counter-affidavit justifying the grant of the Clearance by the Kerala State Environmental Impact Assessment Authority (SEIAA). It has submitted that the appropriate authority having jurisdiction over the matter would be the SEIAA since the project would fall under the category of a Township..In the plea being heard by a Bench of Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar, the petitioner 62-year-old MK Salim had contended that the SEIAA erroneously granted Lulu International Mall Private Limited Environmental Clearance (EC) for its Rs. 1,000 crore Thiruvananthapuram project..Salim had argued, inter alia, that since the Lulu project involves the construction of an area exceeding 1,50,000 square meters, it was up to the Central Government to decide on the question of EC. Salim had highlighted that the State authority only has the power to consider EC for projects involving construction up to 1,50,000 sqm..Lulu Project is a Township falling under State Authority’s jurisdiction.Countering Salim’s contention, Lulu has now submitted that the appropriate authority having jurisdiction over the matter would be the SEIAA as per the applicable 2006 Environmental Impact Assessment Notification. The Lulu project, as per its counter, involves a built-up area of 2, 32, 400 sqms..Lulu has contended that the project would fall under the category of a Township as per the notification prevailing at the time of its EC grant. Therefore, the EC has been obtained from the appropriate authority, i.e. the SEIAA, argues Lulu. As noted in their counter, filed through advocate KP Sudheer,.“He [petitioner] has failed to note that all constructions having a built up area above 150000 sq ms would fall under Townships and Area Development Projects as per clause 8(b) of the Schedule attached to the Environmental Impact Assessment Notification, 2006. .Clause 8, in General, deals with building/constrution projects/area development projects and townships. Sub clause (a) of Sec 8 deals with buildings and construction projects having a built up area above 2000 sq ms and upto to 150000 sq ms. It is categorised as category B under the Schedule. .Under clause 8(a) there is no allocation under category A which is meant to be dealt with by the Central Government on the Ministry of Environment and Forests. All constructions having a built up are above 150000 sq ms fall under the the next category of 8 (b) under the heading ‘Townships and Area Development Projects.’“.Although an amendment was made to the 2006 Notification, it came only after October 2016, by which time the EC had already been granted for the Lulu project, it is submitted..After December 2016, all Township Development projects having built-up area above 3 lakh sqms are to be dealt with by the Central Government authority. However, the Lulu project falls short of this threshold as well, as per the counter. With 2,32,400 sqms as its disclosed built-up area, Lulu has submitted that it would fall within the jurisdiction of the SEIAA as far as EC is concerned..In any case, Lulu contends,.“Nothing in 2006 notification that would show that MoEF has residuary power and what is not mentioned in B1 category automatically vests with the Central Government. Clause 4 of the notification clearly says that the Central Government gets authority for projects and activities included as category A alone and the SEIAA gets authority over projects and activities included as category B. Here is a case where the project falls under category B1 as shown in item 8 go the Schedule attached to 2006 notification. The SEIAA … clearly says that the project is a category B1 project.”.No violation of CRZ, other environmental laws.Lulu has further challenged misleading submissions made by the petitioner that the project would violate Coastal Regulation Zone (CRZ) laws. Challenging a statement that the project would fall under Zone III in the seismic zoning map, the counter reads,.“… entire state of Kerala falls under Zone III of the seismic Zoning Map. Falling under Zone III entails certain precautions as fas a the construction is concerned which this respondent has duly complied with. This zoning has absolutely nothing to do with the coastal zone mentioned in paragraph 3 of the Environmental Clearance.“.It is further stated,.“… the proposed site was outside CRZ III area since it lies at a distance of 100 ms from the HTL of lake. .Lulu has also denied claims of encroachment, citing a boundary sketch signed by a village officer. It has further denied that the project site lies on protected wetlands, stating that the land is a purayidam as per revenue records..On claims that water toxicity would ensue if the project were to continue, Lulu has submitted that it intends to recycle complete wastewater and that there will be no discharge to Parvathy Puthunaar canal. The affidavit also talks about plans to maintain a rainwater collection tank with a capacity of 4,000 Kilo Litres so as to not depend on groundwater. The affidavit reads,.“There will be no impact on ground water or to the surface water (Parvathy Puthanar) due to the project. These aspects are clearly stated in the EIA report.“ .Statutory Remedy before NGT lost by limitation.Ultimately, Lulu raises an objection about the writ petition being filed three years after the issuance of EC..“Almost three years have passed since the Environmental Clearance was issued. The petitioner who claims to be an Envrionermalist cannot be presumed to have not noticed the paper publications [advertising the project]…. The filing of the writ petition at this belated stage is absolutely vitiated by maladies.“.It has been contended that the statutory remedy available to the petitioner before the Chennai Bench of the National Green Tribunal has been lost by limitation, in the meanwhile. On this aspect, Lulu also denies the petitioner’s claim that the Chennai Bench of the NGT has been dysfunctional, arguing that proceedings are being conducted by video conferencing. Therefore, it is contended that,.“The cause of action which is already dead cannot be revived under the guise of a Public Interest Litigation.“.The matter has now been adjourned to enable the petitioner to file his rejoinder..Advocate C Unnikrishnan is representing the petitioner while Senior Advocate Suresh Kumar PK is appearing for Lulu..Central Government Counsel Joseph Rony Jose is representing the Ministry of Environment, Forest and Climate Change.Image taken from here..[Read the Counter].[Read the Kerala HC order dated July 18, 2019]