Kerala High Court
A.V.Balan vs State Of Kerala on 23 September, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 23rd day of September 2021 / 1st Aswina, 1943
WP(C) NO. 41341 OF 2017(S)
PETITIONER:
A.V.BALAN, AGED 57 YEARS, S/O.KUMARAN,
APPICHIVALAPPIL HOUSE, MADAKKARA, IRINAVU(P.O.),
KANNUR DISTRICT - 670 301.
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
FISHERIES AND PORT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE,
REPRESENTED BY ITS DIRECTOR, INDIRA PARYAVARAN BHAVAN,
JORBAGH ROAD, NEW DELHI - 110 003.
3. THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA BHAVAN,
PATTOM P.O., THIRUVANANTHAPURAM - 695 004.
4. THE KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS ENVIRONMENTAL ENGINEER, RUBCO HOUSE,
6TH FLOOR, SOUTH BAZAR,CIVIL STATION, KANNUR - 670 002.
5. KERALA STATE MARITIME BOARD, REGIONAL OFFICE, VALIYATHURA,
VALLAKKADAVU, THIRUVANANTHAPURAM-695 008.
ADDL. R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 20/07/2021 IN WPC.
* REPLACED * (THE DIRECTOR OF PORTS, OFFICE OF THE DIRECTOR OF PORTS,
VALIYATHURA, VALLAKKADAVU (P.O.), THIRUVANANTHAPURAM - 695 008.)
6. THE PORT CONSERVATOR, PORT OFFICE,
AZHEEKKAL PORT, KANNUR-670 009.
P.T.O.
Writ Petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be pleased
to direct the fourth respondent to prohibit all sand purification units seen
in Exhibit P7 photographs established by the side of Valapattanam river
causing pollution to the portable wells in the locality, pending disposal of
the Writ Petition.
This petition again coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and this court's order dated
29/07/2021 and upon hearing the arguments of SRI.P.DEEPAK, Advocate for the
petitioner, GOVERNMENT PLEADER for R1 & R6, SRI.S.BIJU, CENTRAL GOVERNMENT
COUNSEL for R2, SRI.M.P.PRAKASH, STANDING COUNSEL for R3 and of SRI.T.NAVEEN,
STANDING COUNSEL for R4 and of SMT.ANJALY MENON, Advocate for R5, the court
passed the following:-
P.T.O.
S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
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W. P. (C) No. 41341 of 2017
======================================
Dated this the 23rd day of September, 2021
ORDER
S. Manikumar, C. J.
Though the writ petitioner sought for a larger prayer extracted in our earlier order dated 20.07.2021, by referring to the policy of manual dredging in the ports under the State Ports Department in G.O. (K) No. 2/2017/FPD dated 09.02.2017, and the report of the Environmental Engineer, Kerala State Pollution Control Board, Kannur, the 4th respondent, wherein the said authority has categorically stated that the quality of water in the subject site was slightly polluted, when sand dredging and sand washing works were not carried out, but then, the situation could worsen if the same is done, Mr. Joby Jose Kondody, learned counsel appearing for the petitioner, submitted that thus there is a categorical finding of pollution of water.
2. Based on the report of the Environmental Engineer, Kerala W. P. (C) No. 41341 of 2017 -2- State Pollution Control Board, Kannur, further contention has been made by the learned counsel for the petitioner that the said authority has also opined that thick clay waste water, if discharged without proper treatment, would destroy the mangroves and contaminate the well water.
3. Learned counsel for the petitioner further submitted that when the Kerala State Pollution Control Board, has opined that the units involved in dredging and sand washing / filtering, require sufficient pollution control measures, and as per the Board's circular dated 09.07.2019, when manual dredging activities are categorized under green category, such activity has to obtain consent to establish and consent to operate from the Kerala State Pollution Control Board, necessary directions be issued to those, engaged in dredging, to get the orders of consent to establish and consent to operate on the above, as well as take all measures to control pollution, as indicated by the Environmental Engineer, Kerala State Pollution Control Board, Kannur.
4. Though no statement of facts or counter affidavit has been filed by the Kerala Coastal Zone Management Authority, the 3 rd W. P. (C) No. 41341 of 2017 -3- respondent, by inviting attention of this Court to the activities which are prohibited within CRS, Mr. Prakash M.P., learned counsel for the Coastal Zone Management Authority, submitted that in terms of the statutory provisions, whenever there is maintenance or clearance of water ways, channels and ports, the same can be done only based on EIA studies.
5. According to him, reference made in paragraph No. 11 of the counter affidavit filed by the Kerala State Maritime Board, the 5 th respondent, is not correct. For brevity, averments in paragraph No. 11 of the counter affidavit filed by the Kerala State Maritime Board, the 5th respondent is extracted:-
"The averments in paragraph 13 are wrong and made without any basis. The respondents are only carrying out manual dredging for clearing the channel for navigation. The Petitioner has not brought even an iota of proof to claim otherwise. Dredging in ports performed under section 10 (1) of the Indian Port Act 1908 is exempted from the prohibitions of CRZ regulations as per clause 2(viii) of notification dated 19.2.1991 under section 3(1) and section 3(2) (v) of the Environmental (protection) Act 1986 and Rule 5(3) (d) of the Environmental (protection) Rules 1986 and subsequent amendments and regulations issued by the Ministry of Environment and Forests, W. P. (C) No. 41341 of 2017 -4- Government of India. Another writ petition was filed before this Hon'ble Court as WP(C) No. 24109/17 and this Hon'ble Court dismissed the writ petition accepting the contention of the State that a total quantity of 189 lac cubic meters of sand has to be removed from the port basin and navigation channel of Azhikkal port alone, in order to achieve a depth of 7.5 meter depth in the channel."
6. According to Mr. Prakash M.P., learned counsel for the Coastal Zone Management Authority, after 1991, there has been a bifurcation of activities, which are prohibited within CRS Zone, and as per the 2011 notification, in particular clause 3 (iv) (c), said activities stated supra can be done, only based on EIA studies.
7. In the case on hand, there are no materials to indicate as to whether EIA studies have been conducted. Moreover, as per the Kerala State Pollution Control Board's circular dated 09.07.2019, when manual dredging activity is categorized under green category, such activity has to obtain consent to establish and consent to operate from the Board. Circular dated 09.07.2019 relied on by the Kerala State Pollution Control Board is extracted:- W. P. (C) No. 41341 of 2017 -5- W. P. (C) No. 41341 of 2017 -6-
8. Mr. Prakash M.P., learned counsel for the Kerala Coastal Zone Management Authority, Thiruvananthapuram, the 3rd respondent, is directed to file statement of facts, along with the copy of the notification.
Ms. Anjaly Menon, learned counsel appearing for the Kerala State Maritime Board, Thiruvananthapuram, the 5 th respondent, is directed to furnish details of the works undertaken for dredging in Azheekkal Port, Kannur. Such details should contain the name of the local body and also the contractor, if any.
Post after two weeks.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb 23-09-2021 /True Copy/ Assistant Registrar