Kerala High Court
S.Dileep vs Union Of India on 18 December, 2019
Equivalent citations: AIRONLINE 2019 KER 707, (2020) 1 KER LT 406
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 18TH DAY OF DECEMBER 2019/27TH AGRAHAYANA,
1941
WP(C).No.31642 OF 2019(E)
PETITIONER:
S.DILEEP,
AGED 50 YEARS
S/O.LATE SHAHUL HAMEED, SUNINA MANZIL, RUBY
NAGAR, CHALI, THIRUVANANTHAPURAM
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF
ENVIRONMENT, FOREST AND CLIMATE CHANGE, INDIRA
PARYAVARAN BHAVAN, ALI GANJ, JORBAGH ROAD,
NEW DELHI-110003
2 STATE OF KERALA
REPRESENTED BY SECRETARY DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695001
3 HARBOUR ENGINEERING DEPARTMET
REPRESENTED BY ITS SECRETARY, GOVERNMENT
SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001
WP(C) No.31642/19
-:2:-
4 KERAL COASTAL ZONE MANAGEMENT AUTHORITY
REPRESENTED BY IS MEMBER SECRETARY, DIRECTORATE
OF ENVIRONMENT AND CLIMATE CHANGE, 4TH FLOOR,
KSRTC BUS TERMINAL, THAMPANOOR,
THIRUVANANTHAPURAM-695001
5 ADANI VIZHINJAM PORTS (P) LTD,
REPRESENTED BY ITS MANAGING DIRECTOR,
VIPANCHIKA TOWERS, THYCAUD,
THIRUVANANTHAPURAM-695014
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
R2-3 BY SRI.K.V.SOHAN, STATE ATTORNEY
R4 BY ADV. SRI.M.P.PRAKASH
R5 BY ADV. ROSHEN D.ALEXANDER
R5 BY ADV. SMT.TINA ALEX THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
2.12.2019, THE COURT ON 18.12.2019 DELIVERED THE FOLLOWING:
WP(C) No.31642/19
-:3:-
JUDGMENT
Dated this the 18th day of December 2019 Shaffique, J.
This writ petition is filed in the form of a Public Interest Litigation alleging that the 5th respondent has constructed a structure at Muthalapozhi Fishing Harbour at Chirayinkeezhu, Thiruvananthapuram in violation of Coastal Regulation Zone Notification 2019. Petitioner seeks for a direction to respondents 1 to 4 viz., the Central Government, State Government, the Harbour Engineering Department and the Kerala Coastal Zone Management Authority (KCZMA) to demolish the said structure and for other consequential reliefs. Petitioner points out that the 5th respondent who had undertaken the construction of Vizhinjam multipurpose seaport at Thiruvananthapuram pursuant to an agreement executed with the State of Kerala during 2015, had decided to construct a mini barge load out facility at Muthalapozhi located at Perumathura, Thiruvananthapuram. They constructed a new boat jetty by trespassing into an area of more WP(C) No.31642/19 -:4:- than 15 acres of seashore. A concrete road was also constructed violating all the norms. The same was constructed exclusively for transportation of granite. Earlier a writ petition came to be filed as WP(C) No. 8013/2019 alleging that construction was done without permission from the KCZMA. By an interim order dated 4/6/2019, this Court had directed the 5 th respondent not to make any constructions without further directions or without clearance from KCZMA. Ext.P1 is the said order. It is pointed out that, pending the said case, KCZMA had granted clearance, which is produced as Ext.P2. WP(C) No.8013/19 was therefore dismissed by observing that, in so far as permission had already been obtained, there is no reason to proceed with the writ petition. However, when it was contended that the construction was done in an illegal manner and the Coastal Zone Management Authority was not entitled to regularise the same, this Court observed at paragraphs 4 and 5 as under:
"4. Learned counsel for the petitioner contended that the permission from the 5th respondent was obtained at a belated stage, after completing the construction. Therefore it is contended that the construction was done in an illegal manner and the 5th respondent was not entitled to regularize the same. We do not think WP(C) No.31642/19 -:5:- that such an issue is germane for consideration in this writ petition, which was filed on the premise that the entire construction is going on without obtaining any permission. If there occurs any illegality in the action of the 8th respondent in granting such permission, it is a separate issue which needs to be agitated in appropriate proceedings
5. Since the cause of action raised in this Writ Petition does not survive, in view of the permission already granted, we do not think it necessary to pursue further the above Writ Petition, which is filed as pro bono publico. Hence, the above Writ Petition is hereby dismissed."
2. Learned counsel for the petitioner submits that the contention now urged by the petitioner is that the Harbour Engineering Department had filed an application for getting clearance before KCZMA in the year 2018 which was considered in the meeting of KCZMA on 10/8/2018. In the meantime, 5 th respondent started construction of the facility without sanction and it is at that point of time, a writ petition came to be filed. A show cause notice was issued by KCZMA to the Harbour Engineering Department on 28/5/2019 as to why constructions were being proceeded. In the 102 nd meeting of KCZMA held on 9/5/2019, the following decision had been taken:-
"Decision: As per the request of project proponent, WP(C) No.31642/19 -:6:- the proposal for the construction of temporary barge load out facility along with the transit stockyard for rocks shall be recommended to MoEF & CC to obtain Clearance. A notice shall be issued to Harbour Engineering Department for the construction of road and Jetty without obtaining prior clearance from the Authority by invoking Section 5 of the Environment Protection 1986."
3. It is pointed out that, in the 103 rd meeting held on 7/6/2019, the KCZMA had taken the following decision:-
"Decision: The Chief Engineer, Harbour Engineering Department submitted a request vide letter No.D1/10360/09/CE dated 30.05.2019 to reconsider the decision of KCZMA in its 102nd meeting on the said project. The request was examined in detail and KCZMA decided to issue the clearance of Temporary Barge Load out Facility along with Transit Stock yard project at State Level Authority Level itself. It was also decided that the KCZMA decision on recommending the application to MoEF & CC stands cancelled."
4. It is pursuant to the aforesaid decision that Ext.P2 order came to be passed which is now being impugned.
5. The 3rd respondent had filed a memo adopting the statement filed in WP(C) No.8013/2019. In the said statement, it is stated at paragraphs 3 to 6 as under:-
"3 .The site of the Muthalapozhi Fishing Harbour is at the WP(C) No.31642/19 -:7:- river mouth of Vamanapuram River which is flowing into the Arabian Sea. The Southern side of the Pozhi (Estuary) is Perumathura and the northern side is Thazhampally. The Government of Kerala during 1997 developed Muthalapozhi as a Fishing Harbour with Environmental Clearance from Government of India. True copy of the Environmental Clearance issued by the Government of India, Ministry of Surface Transport in consultation with Ministry of Environment and Forest for developing Muthalapozhi Fishing Harbour is produced herewith and marked as Annexure R3(a)
4. Vizhinjam was a Minor Port. The Government of Kerala decided to develop it into a Major Port during 2013 and sought Environmental Clearance from Ministry of Environment and Forest. Comprehensive study report was submitted for the purpose of obtaining Environmental Clearance before the Ministry of Environment and Forest. In the comprehensive study report itself it was contemplated that necessary quarry materials for the development of Vizhinjam Major Port Project will be made available by transporting stones by road from the quarries situated at Kadavila, Kilimanoor to Muthalapozhi Harbour and from Muthalapozhi Harbour, it will be transported in barges to the project site of Vizhinjam proposed Major Port. True copy of the relevant paragraph 4.1.3.1 of the comprehensive Environment Impact Assessment Study (EIA) for Vizhinjam Project is produced herewith and marked as Annexure R3(b). True copy of the Environmental & CRZ Clearance granted by Ministry of Environment and Forest based on Annexure R3(b) study report is produced WP(C) No.31642/19 -:8:- herewith and marked as Annexure R3(C).
5. The contract work for development of Vizhinjam Port into Major Port was conferred on Adani Vizhinjam Port Private Limited (AVPPL). For transporting granite stones using Muthalapozhi Harbour to Vizhinjam Port, an MoU was entered into between Adani Vizhinjam Port Pvt. Ltd. and Harbour Engineering Department of Kerala. Copy of the MoU between Adani Vizhinjam Port Pvt. Ltd. and Government of Kerala is already produced by respondent No. 7 and is marked as Exhibit R7(d).
6. It is as per Exhibit R7(d), the load out facility through Muthalapozhi is permitted by the Government of Kerala, It is submitted that there was already a CRZ & Environmental Clearance for making use of Muthalapozhi for transportation of stones for Vizhinjam Port. Subsequently, The Kerala Coastal Zone Management Authority in its 103 meeting granted CRZ clearance for barged load out facility for Vizhinjam Port Project. Copy of the letter dated 12.06.2019 issued by The Kerala Coastal Zone Management Authority to the Chief Engineer, Harbour Engineering Department intimating that CRZ Clearance is granted by the KCZMA in its 103 meeting held on 7.6.2019 is produced by respondent No.7 and marked Exhibit R7(i)".
6. The 5th respondent has also filed a memo adopting the contentions in the counter affidavit filed by the 7 th respondent in WP(C) No.8013/2019 inter alia stating at paragraphs 4 to 8 as under:-
"4. It is submitted that the 7th Respondent was WP(C) No.31642/19 -:9:- selected as the Concessionaire for Design, Build, Finance, Operate and Transfer (DBFOT) of Vizhinjam Seaport Project which is a major infrastructure project by Government of Kerala which is developed in Public Private Partnership (PPP) mode. The award of the project was the result of a Multi Stage Global Tender Process. Finally, the 23rd meeting of the Empowered Committee of Vizhinjam Port Project held on 07.05.2015 unanimously decided to recommend to the Board of Directors of Vizhinjam International Seaport Ltd. and Government of Kerala to accept the bid submitted by M/s. Adani Ports and Special Economic Zone Ltd. and issued the Letter of the Award.
5. By G.O.(MS) No. 35/2015/F&PD dated 13.07.2015, Government of Kerala had approved the bid submitted by M/s. Adani Ports and Special Economic Zone Ltd. for a grant of 1635 Crores. The estimated project cost for Phase I of the project is Rs. 5552 Crores. This comprises of Rs.1463 Crores of funded work (including construction of breakwater) and Rs.4089 Crores of PPP (Public Private Partnership) Component. The funded work which involves construction of breakwater and a fishing harbour should be funded by Government of Kerala and constructed by Adani Vizhinjam Port Pvt. Ltd. The specification of breakwater as per the Concessionaire Agreement includes a minimum length of 3100 meters with the breakwater top road having a width of 10 meters. The cost assessed for breakwater alone will be Rs.1387 Crore. It is also worthwhile to mention that as per the project completion schedule, the scheduled completion day WP(C) No.31642/19 -:10:- shall be 1460 days (4 years) from the appointed date. The Concession agreement was entered in to on 17.08.2015. AVPPL began Construction of the port in the year 2015 i.e. on 5.12.2015 which is narrated as the Appointed date. As per the agreement, the appointed date is a date on which financial close is achieved and financial close is within 270 days from the date of the agreement. Thus, as per the Concession agreement, Adani Vizhinjam Port Ltd. have to complete construction of breakwater by December 2019. The order issued this Hon'ble Court on 04.06.2019, seriously prejudiced AVPPL as as the Government since the same affects the proposed construction schedule as per the Concession Agreement. Any disruption of work in any part of the project will adversely affect the entire project and will push back the scheduled completion further.
6. It is submitted that the environment impact assessment study identified quarries near Kilimanoor area as a potential source of rocks for construction of breakwater which requires appox 70 lakhs tons of rocks. Accordingly AVPPL made an application to Additional Chief Secretary, Fisheries & Harbour Engineering vide letter AVPPL/GoK/2017-18/283 dtd. 24.11.2017 to permit transportation of rock through Muthalapozhi fishing harbour by providing load out facility at Muthalapozhy. A true copy of the letter bearing no. AVPPL/GoK/2017-18/283 dtd. 24.11.2017 is produced and marked as Exhibit R7(a).
7. In furtherance of Ext.R7(a) letter, a meeting was convened by Additional Chief Secretary, Fisheries & Ports among Chief Engineer, Harbour Engineering WP(C) No.31642/19 -:11:- Department, Director of Fisheries and AVPPL to discuss about the proposal of AVPPL to construct loadout facility at Muthalapozhi fishing harbour. On 16.01.2018, AVPPL submitted a preliminary layout of the Barge Loading facility and requested to carrying out survey work vide letter no AVPPL/GoK/2017-18/319. Further on 17.01.2018, another meeting was held in the chamber of Chief Engineer, Harbour Engineering Department wherein Chief Engineer, Harbour Engineering Department suggested certain changes in the submitted layout. AVPPL submitted the revised layout to Chief Engineer, Harbour Engineering Department vide AVPPL letter AVPPI/GoK/2017-18/323 on 19.01.2018.
8. On 24.01.2018 AVPPL requested Vizhinjam International Seaport Ltd.; which is the special purpose vehicle company created by Government of Kerala for the purpose of facilitating the Concessionaire, to arrange necessary permission for construction of a loadout facility at Muthlapozhi vide letter no AVPPL/GoK/2017- 18/332 considering the following advantages to Muthalapozhi Fishing harbour and State of Kerala.
• The approach channel of Muthala Pozhi harbor will be dredged by AVPPL facilitating the improved navigation in the existing approach channel.
• The loadout jetty proposed to be constructed by AVPPL can be handed over to the concerned authority, which can be used by them in future either for fishery or tourism activity or any other facility deemed fit. • The rock storage area levelled and developed by WP(C) No.31642/19 -:12:- AVPPL can also be used for any suitable purpose in future after AVPPL's operation ends.
• The material dredged from the existing channel could be disposed on the northern side of channel, which will facilitate reduction in the erosion on the northern side. • Backup yard developed on the southern side can be used in future for further expansion of the tourism facility".
7. The learned counsel for the petitioner however contended that in so far as the area comes under CRZ 1 category, constructions can be done only with prior the permission of KCZMA. However construction was made without prior sanction. That apart, it is contended that the new Coastal Regulation Zone Notification, 2019 was published on 18/1/2019 which overrides the 1991 and 2011 notifications. The Coastal Zone Management Plan was approved on 28/2/2019 and the maps were uploaded in the website of KCZMA from July, 2019. Therefore, the 2019 CRZ Regulations govern the field. It is pointed out that the present construction comes with CRZ-1-B, the inter tidal zone and any development activities of permissible projects require clearance from Ministry of Environment, Forests and Climate Change based on the recommendations of the WP(C) No.31642/19 -:13:- Coastal Zone Management Authority. Though the KCZMA had recommended clearance from Ministry of Environment, Forests and Climate Change, during the next meeting, without even getting any such clearance, the impugned decision had been taken. It is also contended that regularisation is not permissible if any construction had been made without obtaining the clearance and the same will have to be demolished.
8. We also heard State Attorney Sri.K.V.Sohan on behalf of State and its authorities, Sri.M.P.Prakash, learned standing counsel for KCZMA and Sri. Roshan D.Alexander, learned counsel for the 5th respondent.
9. But from the factual aspects involved in the matter as borne out from the counter affidavit filed in this case, the following facts are clear:-
By Government Order dated 13/7/2015, the Government of Kerala had accepted the bid submitted by the 5 th respondent M/s Adani Ports and Special Economic Zone Limited (M/s Adani for short) for design, build, finance, operate and transfer of Vizhinjam Sea Port Project, a major infrastructure project by Government of WP(C) No.31642/19 -:14:- Kerala. The total project cost of Phase I is `5552 crores. The work includes construction of breakwater and a fishing harbour. The schedule completion was fixed as 4 years from the appointed date. As per the agreement, construction of break water has to be completed by December, 2019. Environment impact study conducted by the competent authority identified quarries near Killimanoor area as a potential source of rocks for construction of breakwater. The project requires at least 70 lakh tons of rocks. A request was made by M/s Adani for transportation of rock through Muthalapozhi fishing harbour by providing load out facility at Muthalapozhi as per letter dated 25/4/2017 pursuant to which a detailed study was conducted. Later the layout had to be revised after consultation with all the stakeholders and accordingly by letter dated 03/04/2018, M/s Adani requested for a joint meeting with KCZMA, Chief Engineer, Harbour Engineering Department and other stakeholders. Accordingly, an MoU was prepared for construction of the proposed barge load out facility. It was also decided that the Harbour Engineering Department would apply for CRZ clearance. An application for CRZ clearance was submitted on 13/9/2018 and KCZMA in its 98 th meeting which is WP(C) No.31642/19 -:15:- produced as Ext.R7(e) directed remittance of scrutiny fee and a request was made to give a detailed presentation on the project.
The scrutiny fee was remitted on 5/1/2019 and finally CRZ clearance was given as per order dated 12/6/2019. In fact while the application was being considered, KCZMA has issued notice dated 28/5/2019 to the Chief Engineer HED calling for explanation why constructions were carried out in CRZ area without obtaining permission from KCZMA as per CRZ notification 2011 and show cause why actions were not taken in the matter. A reply dated 30/5/2019 was sent by the Chief Engineer to the Member Secretary of KCZMA stating that the constructions were carried out before getting clearance to avoid further casualties of fishermen which was happening in the approach channel of the harbour during the past years. Their fishing boats were getting into trouble during monsoon period and used to sink. It is pointed out that during the previous monsoon, dredging work could not proceed and two fishermen lost their lives. It was pointed out that dredging work was carried out only to save human life in the next monsoon.
10. From the aforesaid facts, it is rather clear that the WP(C) No.31642/19 -:16:- application was submitted even before 2019 CRZ notification came into existence and even according to KCZMA, the relevant provision that applies is CRZ Notification of 2011. Therefore, the contentions based on 2019 CRZ notification has no basis. In the 2011 CRZ notification, the KCZMA is entitled to give clearance for any activity within the CRZ if it requires water front and foreshore facilities which includes construction under Regulation 4(i)(f) i.e., construction and operation for ports and harbours, jetties, wharves, quays, slipways, ship construction yards, break waters, groynes, erosion control measures and salt works are all permissible activities for which MOEF permission is not required. In this case, what we find from the materials placed on record is that CRZ clearance was given for development of Muthalapozhi harbour which was already in existence. The work includes dredging of the approach channel construction of a load out jetty which could later be used for fishery and tourism activity or any other facility, a rock storage area which could also be used for suitable purpose in the future and the dredged material to be deposited on the northern side of the channel facilitating reduction in the erosion on the northern side and construction of WP(C) No.31642/19 -:17:- a backup yard on the southern side which could also be used for further expansion of the tourism facility.
11. In the light of the above discussion, we do not find that there is any illegality in the work being carried out by the 5 th respondent in so far as CRZ clearance had already been issued by the competent authority. The work that was done prior to grant of clearance was dredging, which was highly required for the harbour activity to prevent danger to the fishermen community. At any rate, entire work was done after submission of the application. That apart, this is a major project of the Government of Kerala and necessary clearance had been obtained for the entire project from the competent authorities and that apart, the entire work had to be completed within a short time frame. That apart, all these works are carried out in larger public interest, which should always be kept in mind by the Courts to ensure that if at all there is some irregularity, taking into consideration the larger public interest, this Court should not interfere in such matters.
12. In the project report prepared for the purpose of Environment Impact Assessment study (EIA), Ministry of WP(C) No.31642/19 -:18:- Environment, Forests and Climate Change had already given clearance. The project report includes transportation of stones by road from quarries situated at Kadavila, Kilimanoor to Muthalapozhi harbour and from Muthalpozhi harbour, it will be transported in barges to the project site of Vizhinjam proposed major port. Clause 4.1.3.1 of the project report takes care of such a situation. It is based on the said environment impact study that the Ministry of Environment and Forest had granted environmental and CRZ clearance as per communication dated 3/1/2014 for the Vizhinjam International Deepwater Multipurpose Seaport.
13. In the writ petition, it is contended that the Coastal Zone Management Plan (CZMP) was approved on 28/2/2019. The 2019 notification was published in the Gazette on 18/1/2019. As per Clause 6 of the 2019 Regulations, a Coastal Zone Management Plan has to be prepared by revising the CZMP prepared under CRZ notification, 2011 and it is stated that until the CZMP is revised or updated, the provisions of 2019 notification shall not apply and the CZMP as per the provisions of CRZ Notification, 2011, shall continue to be followed for appraisal WP(C) No.31642/19 -:19:- and CRZ clearance to such projects. It is seen from the website of indiaenvironmentportal that the guidelines for updation of CZMP to align with CRZ notification, 2019 has been issued as per notification dated 27th June, 2019. Apparently, the updated CZMP, as per CRZ Notification, 2019 has not been approved by the Ministry of Environment, Forest and Climate Change.
14. In the result, we do not think that this is a case in which any direction can be issued as sought for by the petitioner.
Writ petition is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE
Rp JUDGE
WP(C) No.31642/19
-:20:-
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE INTERIM ORDER IN
WP(C)NO.8013/2019
EXHIBIT P2 TRUE COPY OF THE ORDER OF KERALA
COASTAL ZONE MANAGEMENT AUTHORITY DATED
12.6.2019
EXHIBIT P3 COPY OF THE JUDGMENT OF THIS HONOURABLE
COURT IN WP(C)NO.8013/2019
EXHIBIT P4 TRUE COPY OF THE RELEVANN PAGES MINUTES
OF 98TH MEETING OF KCZMA DATED
15.10.2019
EXHIBIT P5 COPY OF THE SHOW CAUSE NOTICE DATED
28.5.2019 ISSUED BY KCZMA
EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES MINUTES
OF 102ND MEETING OF KCZMA DATED
09/05/2019
EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES MINUTES
OF 103RD MEETING OF KCZMA DATED
07.06.2019
True Copy
PS to Judge
Rp