Anna University, 8. Exl1ibit R7(g):- True copy of sketch duly ...

M.K. Salim

W.P (C) No. 19580 of20l9

vs.

The State of Kernln nnd others

SI. No. Particulars

: Pe titioner

: Respondents

Page Nos.

Counter affidavit filed by the 7'" respondent.

I -10 I.

2.

3.

4.

5.

6.

7.

Exhibit �7(a�:- T':1c copy of schedule_ a�ached to lhe

2006 Nollficat1on as ,t stood at the time of 1ts issuance. 11 - 16

Exhibit R7(b):-True copy of Notification No. SO 3252(E)

dated 22.12.2014 issued by Minisl.rY of Environment,17 - 18

Forest and Climate Change.

Exltibit R7(c):- True copy of notification No. SO 3999 (E)

dated 9.12.2016 issued by Ministry of Environment, Forest

and Clin1ate Change.

Exhibit R7(d):- True copy of Office Memorandum

(F. No. 3-150/2017-IA-lll) issued by lhe Goven101ent of

India, Ministry of Environment, Forest and Cli1nate Change

on 3.4.2018.

Exhibit R7(e):� True copy of the grant of approval No.

2966/ A3I 16I KCZMAI S&TD dated 30.04.2016 issued by

U1e Kerala Coastal Zone Management Authority.

ExJ1ibit R7(Q:: True copy of the CRZ status report of U,e

project site prepared by the Institute of Remote Sensing,

Anna University, Chcnnai.

19-22

23 - 24

25

26

8. Exl1ibit R7(g):- True copy of sketch duly signed by the

Village Officer, Kadakampally along with its English

1.raJ1slation. 27 -28

9. Exhibit R7(h):- True copy of sketch issued by the

Additional Tahsildar, Thiruvananthapuram showing lhe

plot dirnensions and all surYeY numbers. 29

Ba:r & Bench (www.barandb,ench.com)

tO. B!ldhJt 87@:- True cop f sketCh shovririB pillars of alie with Y O o-c,c&nateS (latitlidelongitude). &eo c

t I. Exhibit R7Cj):- True co of office Memorandum No. J.1_1?13/5/2010-IA-ll(I) /a�ed 24.5.2011 issued by. the Ministry of Environment & Forests, Government of India. 31

J 2. Exhibit R7(k):- True copy of Office Memorandum dated15.3.20 IO along wilh Li I f "tically polluted area as"d · ti d b s O en 32 42 t entJ te y CPCB.

13. Exhibit R7(1}:- True copy of notification published. inMalayala Manorama Daily dated J3.J0.2016 [Enghsh translation of Ext. R7(l) notice is given in Exhibit R7(m)). 43

I 4. Exhibit R7(m):- True co of notification published in

'The Hindu' daily dated l 3.��-2016. 44

Dated this the 27th

day of July 2019.


BEFORETHEH ONOURAaLE HIGH COURT OF KEllALA ATERNAK.ULAM

W.P(C)No. 19S80of2019

M.l<.. Salim

fhe State of Kerala and 1h 0 ers

.! Petitioner

Vs.

Respondents

COUNTER AFFrDA VIT }'ILED BV 7111 RF.SPONDENT

J, Nishad M.A. aged 38 years, S/o. Sri . M.C. Ashraf, Director

ofLuLu International Shopping MaU Private Limited at 34/1000, N.H. 47,

Edappally, Kocbi, Emakulnm _ 682024, do hereby solemnly affirm and

state as follows:-

I. r am the 7"" rcspQndent in the above writ petition (civil) and a

Director of Mis. Lulu Jntemational Shopping Mall Private Limited. 1 am

conversant with the facts of the case. This counter affidavit is being filed

in answer to the avcnnents and allegations contained in the writ petition.

AH the avennents and allegations contained in the ,vrit petition and the

affidavit in support thereof are denied except to the extent admitted

hereunder.

2. The above wril petition is filed without any bonafides and only

with a view to create obstacles in the coming up of a great project which

would generate employn1cnt t o thousands of persons. ll is based on

certain misconceived notions, the wril petition is filed and it is submitted

that the saine is liable to be dismissed.


3. The lllllin all •&ation of the petitioner la thatClearance granled in 111 • •

. vour oflhe project in question•• not In�wtth law. The petitioner ,._,_,_

. w"""" that State Environment Impact Aalli'Bin,614

Authonly. Kerala (hereinafter referred to as 'SEIAA') has got aulhority \0grant clearance in res pec1 or consiruclions only uplo a built up area of1 S0000 sq.ms. I le bas 1 · ·1 · ha • Bled to note thoL nll constructions v1ng a builtup area above J 50000 sq.ms. would foll under Townships and AreaDevelopment Project -

. s as per clause 8(b) of the Schedule attached 10 the

Environmental lmpact Assessment Notification, 2006. Clause 8. inGeneral. d eals with b ·1d· • ... , d \ ui tng/ construction proJec..s, area eve opmenlprojects and townships. Sub clause (a) of Sec. 8 deals with building andconstruction projects having a bu

ilt up ores above 20000 sq.ms. and upm

150000 sq.ms. It is categorized as category B under the Schedule. Under

clause 8(a) there is no allocation under category A which is mean\ to be

dealt ,vith by lhe Central Government in the Ministry of Environment and

Fores ts. All con structions having a built up area above I 50000 sq.ms. fall

under the next category of 8Cb) under the beading "Townships and Area Develop1nent Projects". In this connection a true copy of the schedule

attached to the 2006 Notification as i t stood at the Lime of !ts issuance isproduced herewith and marked as F.xbibit R7(u}. 1n the year 2014 cl. 8

was subs tituted as per an amendment to the Notification carried out vide SO 3252(E) dated 22.)2.2014 of which a trUe copy is produced herewith

and marked as Exhibit R7(b). ll is Exhibit R7(b) that was in force when

this rcspondenl applied for EC and also when EC was granted. Exhibit

R7(b) v,1ould show that Clauses (a) and (b) were termed as category Bl

project. It was specifically mentioned that general conditions will not

apply. Jf general conditions apply, any project under category BI has to

be shifted to category A if it falls within the protected area notified under

the Wild Life Protection, Ecologically Sensitive Area etc. As the general

conditions do not have any application, no project coming under any of the

categories under 8(a) and 8(b) would fall under category A.


�- 2006 notitlcat!on u Onlonclod by Ext- R7(b)WUlheOIIII lafmwwhen this respondent applied for the grant of Envirorunental Cl181811oe.As can be seen from E><hibit Pl, cnvirorunental cl earance wu granted on4.10.2016. It was much 1 ·r, · was·--•-• ater the 2006 noll 1cauon _ ..... ,� onceagain. Thus.• notilication was issued on 9.12.2016 and cenain change,were introduced in the 2006 notilicatlon with regard to various buildingcotegorios. A true copy of the said notificotion is produced herewith andmarked as Exhibit R?{c). A E I RJ(c) Townships and Arca-- sper ,c

Development Projects having b

uilt up .,.-.,a above 3 Lakhs sq.ms . was

included as falling wider cntegory A under clause S(b). So. from9.12.2016 all constructions having O built up area above 3 Lakhs sq.ms.

nre to be dealt with by the MoEI' in Centro! Government. As far as the

project of this respondent is concerned, its built up area is 232400 sq.ms.

and it falls under categ ory 8 1 of which the authority to issue the

Environmental Clearance is

!he SElM- It is understood that the

amendment in re lation to constructions having built up area above 3 Lal<hssq.ms. is not impl emented so far and by virtue of an order of the Hon'ble

Supreme Court of lndia it is the concenied SEIAA ,vhich deals with eve n

cases where the built up area is above 3 lakhs sq. ms. That is evident

from an Offic e Memorandum issul'<I by the Governmen t or India on

3.4.20J 8 of which a true copy is produced h erewith and marked as Exhibit

R7{d).

5. A close reading of the Schedule and lhc related orders would

clearly show that all consu-uctions having a built up area of 150000 sq.ms.

fall under item 8(b). Clauses 8(a) and &(b) are 001 tolally independent and

8(b) is so1nelhing in continuation of S(a) as the lillc of clause 8 itself

indicates. There is a quantitative correlation between llv.: two clauses and

moreover, there is nothing in 2006 notification that would show that

MoEF has residuary power and what is not mentioned in B 1 category

automatically vests with the Central Goverruncnt. Clause 4 of the


� and IIOlhltfea lllllhld auth<>rlty over prq• -• _. ellel"'lf A llkilw lllil illii-aild case where the -· IIOllviuea Included u -..,-11''""Ject fallaSchedule attlehed lo llnclo,, oateaOl7 BI u ohown In i- 6 ftll,

Exhibit PI clearl� l006 11ot1noa1ion. The SEIAA In pu8&ftlfb IS of, soya that llie Ptojec t I• a catqOI)' BI projec:L

6. Exhibit P2 I ctter iss . ndcr u, Information Act Ued by the SE.IAA u a Rlahl to

says tluu their jurisdiction .

as far o.s constrUction proj«\I are c:onccmed IS Uplo b ·1

construction . u, 1 up area of I 50000 sq.m•. The fact that oUproJects havin

und er next . g • buih up area beyond I S0000 sq.rm. Callcategory 15

r mlted not 111•ntioned therein. most probably doe to thei scope of lhc . I.

question raised by the pctiuoncr. Therefore. nore iance can be placed b . 1

on Exl11bi1 1'2 and no argument can be rai,;ed on its asis w ,en lhe statuto ry not,lication i s absolutely clear in terms.

7 . 1n paragraph 4 r th . . f . . 0 .e wnt pctluon. the nuempt o the pel1t1oner1s to create confusion b etwcen I.he statements in paragrnph 3 of \he

Environmental Clea ranee and the table just above the said pnragi:nph. In the table just above paragraph 3 whm is stated is that the project nrca falls

in Zone-lU as per the lndinn carlh quoke zone. In this connection ii maybe noted lhai the cm ire State of Kerala falls under Zone-lit of \he Seismic

Zoning Map. Falling under Zone ill clllails certain precautions as far as

the construction is concerned which this respondent has duly complied

with. T11is zoning has absolutely nothing, to do with the coastal :c.one

mentioned in paragraph 3 of Lhe Environmental Clearance. In paral!,fllph

3 it is stated that the project site is near coastal zone which is influenced

by sea water during high tide and hence CRZ study was carried oul. \1 is

further pointed out that the proposed site was outside CRZ Ill area since it

lies at a distance of l 00 ms. from t he HTL of lake. Here the reference

was made to AkJ<ulaiu Lake which is situated 1norc than 100 ms. away


ttom Iha lite. Bia .... _

II QOl'ICOfflad lhb, la ..... wbicll pall• ... .:

What Ille llllhcriiy ..,.,•is. On

SOllgltl by ,-::;::. of Ill• K/1- Glltl NI.,.,, ..,,.., ••• -conslder,,d In II,

-d1111 of SElM, ti,•,,..,,,..., -....

The pre E c • Sit" _ _,,,,, of SEIM t,,td an OI.Of,2fl6.• • con,1/ , , _ praerve the N

1-n _, subm1"1on of a f.,../611 lldl- ,.

lund.fcop/nll O O..,.topmenl Zone of CRZ - ,.._

Ond ,,chcme ,0 11Pkeep of T.S. conal portion on CSR. A

, J'' gr��nl z ,1edg11, n, d.

ng lhe N11 De,�lupmrnl on• wlllt 1run

submilted plunt:. u11J butterfly ,,ird,11 lea bft•C tci11al• As Ji /11/ormed h or T.S. canal c,mser,•at/1111 undtr CSR, II &t UI th

upAe.e,, ,r t'j ' hal>e 1111 cu11tn1I o••c.r the walrr body, 6111' o, t>Drt/o ,r

t11kct1 . n °J the cu11ul ,,buttmg llu: pro}tcl site alft btup ifp• l ap"JrOI d "" 11•d by 1/,e ;lut/1orllJI cu11cerned. Authority

� · ie these d c:ut1se • un l!rtaking.'i. In case tl,e compontnl on

r1,1. . 'J .s. can11/ coultl ,wt bi taken up dau ta an1• n•at,Q11 0r T. ..... sm,, theCo • /Jroponl!.trt sllllll in cu11sullation wilh 11,e

rporullon o' T.I • , • 'J 11ru�·a,,a11t/111p11ram 1111ptcmenl oppropriall!c.11wro11111e.,,1

d .. , ca.re programmes including the gtt4!nlng of no

C!vtuopme111, to,u.\ at the st1111e ex/)end,ture as h,u kt!nsllpulatcd viii• para J J.2."

8· It may be noted that in the proposal itself the existence of Parvaihy Puthanar river and Akkulam lake arc mentioned. The No

Development Zone on the bank ol' po.rvathy Puthanar (T.S. Cuna\) has

been completely left out and in pu.ragroph 13 the authority issues the

following 1nain conditions:

l. The No Development Zone of CRZ UI shall be preserved as a

green area with proper landscapin� in llne with lhe condition in

the CRZ clearance.

2. Upkeep and maintenance of lhc T.S. canal stretch tn1vcrscd by

I.he project site shall be taken up and executed by the proponent

as their CSR activity pertaining to the project. The amount


I

81loaect forcost. CS!\ abouJci be enhanced tc> ml� ff!,

3. The ProP<>n con,scrv .

ent lhatl •ubm11 a feasible scheme on the .,,.,at1on Pro 4. Surve b 8'ntn1t1cs 10 SEIAA before the Issue of EC,

y OOJnda,j ordinar

•• of the canal based on geographic co-es shall bebou,id fixed and exhibited on visible boards ..ary of the

W' f,S, Cllnal portion. lO prevent encroachmenL ircmcsh fenc· s mg shall be erected all along the approved urvey bound ary of the canal within lhe area possessed by theproponent, also . h

as a safety measure, the canal being very deept roughout the 1 •ng1h and bread01 traverse d by the boundary.

A� per I he CRZ Noti r, •cation, CRZ shall apply 10 the land area betweenJ-ITL to I 00 rotrs or lh e Width of the creek whichever is less on thela ndward side. Herc th • c Width of the creek is around 20 mlrS. and lhe

corresponding area on th 1 e andward side has been completely left out asNo Developn,ent Zo ne. That is the re ason why the Coastal Zone

Management authority gTanted its approval for the proposal. ln thisconnecLion 8 true copy of the grant ol' approval by the Kerala Coastal Zone

Management Authority is produced herewith and marke d as Exhibit

J�7(e). Jn this connection a true copy of the CRZ status repon of the

project site prepared by the Institute of Remote Sensing, Anna University,

Chcnnai is produced herev.�th and marked as Exhibit R7(Q. Exhibit R7(t)

would shO\V a clear picture of tbe project site and the CRZ implications of

project.

9. As far as the averments in paragraph 6 of the writ petition are

concerned, it is humbly submitted that they are absolutely baseless and

unfounded. There has not been any encroachment of Parvathy Puthanar as

alleged by the petitioner. The boundary pillars of this respondent's

property are

Department.

deinarcated with the survey stones of the Revenue

A sketch duly signed by the Village Officer is produced


,

harcwilh and 111 • . ., _. -- .. 1a ... th• sketch 1.._ by l!tt BU•L In lhl• _ _,_•._ ._et•howing the Plot di U,., l\ddJt1ana1 Tolulldar, 11muv-llh:;=•....... , ..... and marked ,.. Eablb 8nd all ourvoy numbon 11 ..-i- .... ...,

II 82('U, houndory pillar, r . I\ true COP)' or ""' sketch llhawlna ..O Ille '-tjd) produced hcrewnl, "'1d l!eo CO.Ordinal .. (latitudo and longitude) • were Produced •-r, "'-rl<«1 as E•hlbif R7jll, All the,c doc-"" Or>, the $ l>c<n ru,y encro h • 1:IAI\ and they would show 1h11 there hu IIOIa.c tnent · . 1he proposuJ 10 . n,,. ro,pondcnl does not know nnytlung about widen 1 S . . °"lll>.I.

I 0. The averment . nc11Jal d'

in Pilnlgraph 7 arc made without uny M'IS. The1stance bctwec

\,� n Akkulam Juke and the project site is above 300 meLrs. ·• nat the EC sa . , . . JOO ys is that the minimum to be observed u, such CIL'ICis mtrs nnd the. project site is beyond l 00 mtrs. As for os theexistence of Parvathy p . Uthnnar 1s concerned. it is shown rn the l:.C iLSclfthat n abuts project site · As st.ited earlier. as per the CRZ Rcgulntions, the prohibited distan · . ce 15 either I 00 mtrs or the width of lhe creekwhichever is less As r, · nr as Parvalhy Pulhanor is oonccrned it's No Development Zone is its OWn breadth on the landward side or lhe !ilc.The satellite map produc d b . . . ·

e y the peuuoner 1s not accurate enough toshow the No Development Zone between project site and ParvalhyPuthanar. Satellite map is not a scientific tool. The contention inparagraph 8 that the project would not come under clause 8(b) is notcorre<:1. Any construction having a built up area above I 50000 sq.ms.falls under the category menlloncd in S(b). Otherwise a building having abuilt up area beyond 150000 sq.ms. will be out of the purview orEnvironmental Clearance as there is no menuon of it in the notification.

Anything beyond what is prescribed an category B 1 will not be classified

under category A. In tJ1is c0Mcc1ion a true copy of OM dated 24.S.2011

is produced herewiLh and marked as E:1.hibil R7(j} and iL would show that

all projects under cl. 8 as on the date of the grant of EC remain as category

8.


II. F\lftber•• '"Part criteria to be qua11nec1

n,.. or kSPCB IO CPCB (Exhit,ll P4) la'"General COO<liUons•

lhe llppllcablill)' or "Genorlll MDlltJ_. 1'llol p01luted area as iden '.'3 lltalecl in EIA 2006 mentions that "Iha """'-'"·

llfiod b ... _.,

will nm qualify r, Y CPce•. A n,pon from KS PCB to CPCB or dcc:ta,;

•

KSPCB n:pon there . ng an area as critically polluted. Even In lhe

is now pollu1ed area as idc , OUld "Critically Polluted". Toe list of oritioallynt1fied b

Exhibit R7(k}, "x Y CPCB is produced herewith and marked as• " cept G

as izritically pollut d reatcr Cochin there is no area in Kerala dec,larcd

e area Th Dcprutment is und · e petitioner alleges that Inland Waterwayser the M'

Inland Waterways De llllstry of Wat,ir Resources. I t is a wrong faot

Partcnen• · , . . f Sh' . ' s under the Ministry o 1ppmg.

12· It is stated th whole h

at for the "reclamation and widening'' of the stretc of f>arvath f

Y Puthanar bv Lnland Waterways Department crores o rurees was s _

•

be . l)enL It ,s surprising that the petitioner who claims

to an env,ronmental . . . .

act,v1s1 is supporting reclamation which ts a n acuv1ty that will damage a water body.

13.

site is

The allegation that there arc wetlands included in the projectabsolutely incorrect. Th

e entire land is purayidam in revenue records.

14. It is stated in Lhe application that the ground water table in the

area 1s high due to the proximity of water body. The project proponent

intend to recycle the complete waste water after treatment and there will

not be any discharge to the Parvathy Puthanar. Further, the project

proponent intend to construct rain water collection tank \vi\h a capaci ty of

4 000 KL so as to use the rain water as source of water for the project and

not to depend on ground water. Therefore, there \vill be no impact on

ground water or to the surface water (Parvathy Puthanar) due to the

. Th aspects are clearly stated in the EIA report.proJect. ese


15. As •ubmi .. � - eart· case was l!Tllnled •or, Environmental Clcennce In Iba l""Hll&on 4. 10 201 publicntion throun'- · 6- Thc:rcupon I.his respondent bed afreawd ,..,out Kera] and 'Malnyala M a ID two leading dailies called 'The Hb!daa'anonuna' T herewith and m k

• rue copies of the notifications an: producedar ed as � above !he EC was hil>its R7{1l and R7(ml. Apart from the

uploaded b years have pas ed . Y the Authority on its website. Almost lhrec

s smce th . petitioner wb 1 . e Environmental Clearance was issued. 11,e

o c rums to b have not not' d�

e an Environmentalist cannot be presumed to,c...., the pap

petition at th· be er publications. Therefore, the filing of the writ

,s lated sta . bm· t d th ge IS absolutely vitiated by mala!ides. It is

s1.1 ' cc at U1c pr . .

f: f OJect In question would generate direct employment in

avour o 3000 persons . . . and indirect employment for 5000 persons. Any

proJect of the group whi h .

c this respondent belongs to, take care for utmost compliance with all the E nv1roomental Laws. All their projects conformto the modern nonns prescr1'bed by Lhe United Nations in variousconventions. Th e present project is a 1000 crore project and a sum ofRs.685 Crores has alread b . .

. Y ee n invested. The proJCCl would generate a lax revenue in favour of the Government and other authori1ics 10 the tune

of Rs.200 Crores every year apart from being a source of employmen1

generation. The attempt of the petitioner to create obstacles in

implementation of the project is not in public interest and is only with

ulterior motives. His averment that National Green Tribunal a l Chennai is

not functioning and he has no remedy is also incorrect. On a regular basis

lhe Principal Bench of the NGT is having video conferences with the

Chennai Division. Hearings are taking place at Chennai without an)

hassles. It is also sub1nitted that the statutory rc1nedy available in favou

of the petitioner under the NGT is lost by way of li1nitation. The cause<

action which is already dead cannot be revived under the guise of a Pub1

Interest Litigation.


16, It la auab"'11ii.i;Dtb.i ... ... thla Hon'blo Coillt .. -._ affldw\t ..

inierim •PPIIClltlon On die '-t da)' of haarina oplllOll- llili

respondent cra.,08 lheWo

uld

be toaaldan,d 1mm,,dla1ely. ,,......, counter affidavit In

lea.,e of lhis Hon'blc Coun fa, lilina.,. •,Mlt1-•111e 1t i,..,

Oll\esneccssar)',

For the a ' - -""''-'c n:q Court moy be pl ona it ia humbly prayed that this Hon'blc

C""4:(I to this respondent d

'•Ject the writ petition in toto with the collS ofno •lso lo d .

. . petitioner. CC,ltnc the lntcnm rehcr sought ror by the

·n,e facts stated above are true and correct. Dated this the 27,, d ay of July 2019.

SolenIBly affirmed and signed before me by the Deponent who

is personally known to me on this lhe 27'" day of July 2019 al my office al

Emakulan,.

K.P. HEER

ADVOCATE


Anna University, 8. Exl1ibit R7(g):- True copy of sketch duly ...

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