K P Chandrangadan v. State of Kerala and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 WP(C) NO. 38674 OF 2022 ## PETITIONER: K P CHANDRANGADAN, AGED 80 YEARS, S/O ACHUTHA MARAR, PENSIONER, RESIDING AT SREEDEVI NILAYAM PAZHAYANGADI R.S. (PO). KANNUR – 670 358. BY ADVS.MAHESH V. RAMAKRISHNAN ADV.PRAVEEN K.S. ## RESPONDENTS: - 1 STATE OF KERALA, REP. BY ITS CHIEF SECRETARY TO GOVERNMENT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 2 SECRETARY TO GOVERNMENT, REVENUE DEVASWOM) DEPT. GOVT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 3 SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPT. GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. - 4 THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR 670 002. - 5 THE REVENUE DIVISIONAL OFFICER, TALIPARAMBA KANNUR - 670141. - 6 TAHSILDAR, PAYYANUR TALUK, TALUK OFFICE, PAYYANUR, KANNUR - 670307. - 7 VILLAGE OFFICER, EZHOME PO., EZHOME, KANNUR 670334. - 8 THE FOREST RANGE OFFICER, TALIPARAMBA, PO TALIPARAMBA, KANNUR - 670141. - 9 THE DEPUTY DIRECTOR OF PANCHAYATH, CIVIL STATION, KANNUR 670 002. - 10 THE DISTRICT TOURISM PROMOTION COUNCIL (DTPC), KANNUR REPRESENTED BY ITS SECRETARY, CALTEX JN., KANNUR - 670002. - 11 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, REPRESENTED BY ITS MEMBER SECRETARY. 4TH FLOOR, KSRTC BUS TERMINAL. THAMPANOOR THIRUVANANTHAPURAM-695001. - 12 STATE WETLAND AUTHORITY, KERALA, REP. BY ITS MEMBER SECRETARY, 4TH FLOOR, KSRTC BUS TERMINAL. THAMPANOOR, THIRUVANANTHAPURAM - 695001. - 13 UNION OF INDIA, REP. BY ITS UNDER SECRETARY, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE. GOVERNMENT OF INDIA, INDIRA PARYAVARAN BHAVAN JORBAGH ROAD. NEW DELHI - 110003. - 14 EZHOME GRAMA PANCHAYATH, REP. BY ITS SECRETARY, OFFICE OF THE EZHOME GRAMA PANCHAYATH, KOTTILA P.O., KANNUR - 670334. - 15 MATTOOL GRAMA PANCHAYATH, REP. BY ITS SECRETARY, WARD 5 BUILDING NO.286, PAZHAYANGADI-MATTOOL ROAD, KANNUR 670302. BY ADVS.PRAKASH M.P. SRI.KRISHNADAS P.NAIR, CGC SRI.SHAHUL HAMEED MOOPPAN SRI.MUHAMMED SHAFI M SRI.T.RASINI(K/000090/2017) SRI.AYISHA AFRIN A.V.K.(K/000828/2021) SRI.K.M.VARGHESE(K/000268/1992) SRI.T.A.NIYAS(K/324/2003) SRI.ARUN T.S.(K/1188/2021) SRI.ADV.M.P.PRASANTH, G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 38674 OF 2022 :: 2 :: ## JUDGMENT Dated this the 6[th] day of March 2023 ## S.MANIKUMAR, C.J. The petitioner in this Public Interest Litigation is stated to be an environmental activist and a public spirited person. He has filed this writ petition seeking for the following reliefs: - “i) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the Respondents 1 to 15 to prevent the illegal reclamation of the "Pazhayangadi-Kuppam" river, further destruction of mangrove forests, and to prevent any kind of activity within the area notified as CRZ-1A & 1B as per Exts P1 and P3 approved CRZ maps, forthwith; - ii) To declare that all acts of construction and development on the banks of the "ValapattanamKuppam river" at "Pazhayangadi-Muttukandi” and “Thazhekavu at Thekkumbad island” are in violation of the extant norms of the CRZ Notification 2019 and the relevant provisions of the Environment (Protection) Act, 1986 and the Rules thereunder; - iii) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the Respondents 1 to 15 to take appropriate steps to remove the unloaded red-earth and gravel, concrete pilings and wooden pilings, and all other allied equipment installed in connection with the work immediately from the river and its banks of "Valapattanam-Kuppam river" at "PazhayangadiMuttukandi (GPS Location site No. 12.026707N 75.272786E) and Thazhekavu at Thekkumbad island (GPS Location No. N11.966321 E75.2980748) and to restore the river into its original position, including the replantation of the mangroves; WP(C) NO. 38674 OF 2022 :: 3 :: - iv) To issue a Writ of Mandamus or any other appropriate Writ order or direction, directing the Respondents 1 to 15 to not allow any kind of floating hotels inside the river in "Valapattanam-Kuppam river"; - v) To issue a Writ of Mandamus or any other appropriate Writ order or direction, directing the Respondents 1 to 15 to take appropriate legal action against the persons who are responsible for the large-scale destruction of mangrove forests from the river and from the banks of the River and filling of the "Valapattanam-Kuppam river"; - vi) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the Respondents 1 to 15 to stop functioning of any kind of restaurant on the banks of "ValapattanamKuppam river” within the area notified as CRZ1A and 1B and its buffer zone as shown in Exts.P1 and P3; - vii) To dispense with the translation of the documents produced in the vernacular language.” 2. It is submitted by the petitioner that 'Pazhayangadi- Muttukandi' comes under CRZ-1A & 1B as per Ext P1 approved CRZ Map. Thazhekavu at Thekkumbad island comes in CRZ-1A as per Ext.P3 approved CRZ Map. 3. Both the places situate on the banks of the "Valapattanam-Kuppam" river in Kannur District of State of Kerala. Ext. P4 (Resolution No.3.3) shows that the proposal by the State Government for approval of developmental activities in the above two places was deferred by the WP(C) NO. 38674 OF 2022 :: 4 :: Expert Appraisal Committee (EAC-CRZ) under the Ministry of Environment, Forest and Climate Change Govt of India. 4. However, in spite of such refusal for approval, work started causing mass destruction of the environment. Thick mangrove forest from the buffer zone in CRZ being extensively destroyed by using JCB. About 60 Cents of river in CRZ 1A & 1B encroached upon and almost filled by unloading red-earth. 5. The work is stated to be done under the State Government in the name of "Mangrove Cruise Route Project" and "Theyyam Cruise Tourism Project". Such mass destruction of the environment is being done by misusing the funds allocated by the Central Government for the "Grameena Darshan Programme" which is renamed by the Government of Kerala as "Malabar River Cruise Project". Petitioner is aggrieved by the illegal and unauthorized developmental activities being done by some unknown private agencies with the silent support of the State Government authorities in gross violation of the law and the CRZ norms. WP(C) NO. 38674 OF 2022 :: 5 :: ## 6. Grounds raised in the writ petition read thus: A. The inaction on the part of the respondents against the unauthorised and illegal filling of "Valapattanam-KuppamPazhayangadi river in blatant violation of the all statutory provisions and the laws is arbitrary, irrational, contemptuous, serious dereliction of duty on their part to protect the environment, amounts to total destruction of river, river bed and its biodiversity by statutory and the governmental authorities, violative of the rights of the citizens guaranteed under the Constitution of India and of natural justice. B. As per CRZ Notification 2019, the area where the illegality of filling a substantial portion of the "Valapattanam-KuppamPazhayangadi” river being done comes under CRZ-1A & 1B as evident from Exts.P1 and P3 CRZ plans. Therefore no developmental activities of any kind can be made except with the prior permission of the Ministry of Environment, Forest and Climate Change, Government of India, the 13[th] Respondent herein. To the knowledge of the petitioner herein no such permission was ever granted by the 13[th] Respondent for the illegal activity now being done. Further Ext.P4 shows that the Expert Appraisal Committee (EAC-CRZ) under the 13[th] Respondent has deferred the proposal. The petitioner as per Ext P6 representation has already sent a complaint to the Respondent No. 13. C. The entire activities so far done in the river and on the river banks at "Pazhayangadi-Muttukandi' and Thazhekavu at Thekkumbad island and the further activities intended to be done are prohibited activities in CRZ-1A, 1A and buffer zones. There is no reason why the Respondents 1 to 15 is not interfering permitting continuance of the illegal activity, which would ultimately kill the environment. D. The reclamation/filling of the river is completely prohibited within the CRZ areas. The area in question is an inter-tidal zone. In Re:Construction of Park at Noida, Near Okhla Bird Sanctuary and another v. Union of India and others (2010 KHC 4956) the Hon'ble Supreme Court of India held that environment is one of the facets of Right to life guaranteed under Art. 21 of the Constitution of India. It was further held that environment is a matter directly under the Constitution and if the Court perceives any project or activity as harmful or injurious to the environment, it would feel obliged to step in. WP(C) NO. 38674 OF 2022 :: 6 :: E. In Vaamika Island (Green Lagoon Resort) (M/s) v. Union of India and others (2013 (3) KHC 525) the Hon'ble Supreme Court upheld the findings of this Hon'ble Court that the constructions made in CRZ-I are in violation of the CRZ notification and Coastal Regulation Zone. It was held that the shrinkage of Vembanad Lake as a result of land reclamation has been the most damaging environmental consequence of various human interventions. F. In Goa Foundation, Goa v. Diskha Holdings (P) Ltd (AIR 2001 SC 154) the Honble Supreme Court held that the Courts must scrupulously try to protect the ecology and environment. In Ansari Kannoth v. State of Kerala and others (2011 (1) KLT 1043) , this Hon'ble Court found that the attempt on the part of a Co-operative Society to start a Mangrove Theme Park on the banks of the same river (which is the subject matter of this Writ Petition) as violative of the provisions of the Environment (Protection), Act, 1986 and CRZ Notification. It was also held that the activity was without permission from the statutory authorities concerned, especially the MoEF&CC, Govt of India. ## 7. On 15[th] December 2022, we have passed an interim ## order, relevant portion of which reads thus: “7. On this day, on instructions from the Forest Range Officer, Kannur - respondent No.8, Mr.Nagaraj Narayanan, learned Special Government Pleader (Forest) submitted that there is no destruction of mangrove forest nor there is any encroachment. He further submitted that no instructions have been received from the District Collector, Kannur (respondent No.4) in the matter. Submission of the learned Special Government Pleader (Forest) is placed on record. 8. By inviting the attention of this court to the minutes of the 288[th] meeting of Expert Appraisal Committee for projects related to Coastal Regulation Zone held on 16.2.2022, Mr.M.P.Prakash, learned Standing Counsel appearing for the Kerala WP(C) NO. 38674 OF 2022 :: 7 :: Coastal Zone Management Authority (respondent No.11) submitted that the project submitted for approval has not been approved. 9. In this regard, learned Standing Counsel has invited the attention of this court to the deliberations made in the EAC, which read thus: “The committee deliberated on the proposal and noted that the project proponent has not provided the CRZ area status of Pazhayangadi wherein Boat Terminal in an area of 563 Sq.m is proposed. The committee also observed that there is no mention of the proposed location in the Kerala CZMA recommendations too and that a clarity is required on the floating restaurant. The Committee also desired to have revised/composite map of the proposed locations. 3. The Committee, after detailed deliberations, deferred the proposal for want of the following information and advised the project proponent to revise the proposal as per the extent norms of the CRZ Notification, 2011: (i) The CRZ area status of Pazhayangadi wherein in a Boat Terminal is proposed shall be provided. (ii) Recommendations of Kerala CZMA for the proposed activities in the CRZ area. (iii) Details of the floating restaurant, its location, mobility, safety features, etc. (iv) Revised/composite map of the proposed locations. (v) Non-permissible activity in NDZ area, if any, as per the extant norms of CRZ Notification, 2011 shall be relocated to permissible area/outside CRZ area and details shall be provided. (vi) the number of pillars should be minimum, as not to interrupt the water flow, without compromising safety and stability of the project.” ## 10. Mr.Shahul Hameed Mooppan, learned Standing Counsel takes notice for the Ezhome WP(C) NO. 38674 OF 2022 :: 8 :: Grama Panchyat (respondent No.14). Mr.Muhammed Shafi.M. learned Standing Counsel representing Mattool Grama Panchyat (respondent No.15) submitted that an application dated 7.8.2022 has been submitted to the Kerala Coastal Zone Management, Thiruvananthapuram (respondent No.11) for clearance. 11. From the abovesaid materials as also Ext.P9 and P10 photographs, it could be deduced that there are some construction activities on the banks of the "Valapattanam-Kuppam river" at "Pazhayangadi-Muttukandi”. It is also clear from the deliberations made in the Expert Appraisal Committee for projects related to Coastal Regulation Zone no decision has been taken, but the same has been deferred for want of certain information. 12. In such circumstance, we are of the view that there should not be any activity without obtaining any clearance from the competent authority under the Coastal Zone Regulations. Therefore, respondent 1 to 15 are directed to stop all kind of activities on the banks of the "Valapattanam-Kuppam river" at "PazhayangadiMuttukandi” (GPS Location site No.12.026707N 75.272786E) and “Thazhekavu at Thekkumbad island” (GPS Location No.N11.966321 E 75.2980748) forthwith, until clearance is obtained from the competent authority on the proposals stated to have been submitted by respondent No.15.” 8. Mr.Nagaraj Narayanan, learned Special Government Pleader (Forest) submitted that pursuant to the interim WP(C) NO. 38674 OF 2022 :: 9 :: order of this court dated 15[th] December, 2022, construction activity has been stopped. 9. Above submission of learned Special Government Pleader (Forest) is placed on record. 10. After adverting to the submission of Mr.M.P.Prakash, learned Standing Counsel appearing for the Kerala Coastal Zone Management Authority - respondent No.11 and the deliberations made in the Expert Appraisal Committee, we have recorded the fact that the project submitted by respondent No.1 has not been approved. Even as on today, the same is the position. 11. Having regard to the above, we are of the view that till the clearance is obtained from the competent authority on the proposals stated to have been submitted by respondent No.15, no construction is permissible. Thus prayer Nos.1 and 2 are answered accordingly. 12. As regard the third prayer is concerned, i.e., removal of unloaded red-earth and gravel, concrete pilings and wooden pilings, and all other allied equipment installed in connection with the work immediately from the river and WP(C) NO. 38674 OF 2022 :: 10 :: its banks of ‘Valapattanam-Kuppam, river’ and Thazhekavu at Thekkumbad island and to restore the river into its original position, we are not inclined to issue any such direction for the reason that continuation of the work already undertaken be possible only if clearance is granted by the competent authority. Moreover, if the relief sought for is granted, it would incur expenditure for such removal of unloaded red-earth and gravel, concrete pilings, wooden pilings, etc. We refrain from granting the said relief sought for in this writ petition. In the light of the above, interim order passed by this court on 15[th] December 2022 is made absolute and the writ petition is accordingly disposed of. sd/S.MANIKUMAR CHIEF JUSTICE sd/MURALI PURUSHOTHAMAN JUDGE jesxxxx WP(C) NO. 38674 OF 2022 :: 11 :: ## APPENDIX ## PETITIONER’S EXHIBITS: - Exhibit P1 TRUE COPY OF THE CRZ MAP NO.KL-74 APPROVED BY THE NATIONAL COASTAL ZONE MANAGEMENT AUTHORITY, MOEF & CC, GOVERNMENT OF INDIA. - Exhibit P2 TRUE COPY OF THE PHOTOGRAPHS OF THE WORKS NOW GOING ON AT PAZHAYANGADI-MUTTUKANDI RIVER. - Exhibit P3 TRUE COPY OF THE CRZ MAP NO.KL-70 APPROVED BY THE NATIONAL COASTAL ZONE MANAGEMENT AUTHORITY, MOEF & CC, GOVERNMENT OF INDIA (13TH RESPONDENT). - Exhibit P4 TRUE COPY OF THE MINUTES OF THE MEETING OF EXPERT APPRAISAL COMMITTEE (EAC-CRZ), UNDER THE 13TH RESPONDENT, IN ITS MEETING HELD ON 16-02-2022. - Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 15-11-2022 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS 4 AND 11. - Exhibit P6 TRUE COPY OF THE PETITION DATED 21-11-2022 SENT BY THE PETITIONER TO THE 13TH RESPONDENT. - Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 20-11-2022 SUBMITTED BY SRI. T.P.PADMANABHAN, DIRECTOR, SOCIETY FOR ENVIRONMENTAL EDUCATION IN KERALA (SEAK), PAYYANUR TO THE 12TH RESPONDENT. - Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 01-07-2020 SUBMITTED BY SRI. T.P.PADMANABHAN, DIRECTOR, SOCIETY FOR ENVIRONMENTAL EDUCATION IN KERALA (SEAK), PAYYANUR TO THE 11TH RESPONDENT. - Exhibit P9 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHOOMI MALAYALAM DAILY DATED 10-11-2022 (ALONG WITH ENGLISH TRANSLATION). - Exhibit P10 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA MALAYALAM DAILY DATED 10-11-2022 (ALONG WITH ENGLISH TRANSLATION). - Exhibit P11 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA MALAYALAM DAILY DATED 03-11-2022 (ALONG WITH ENGLISH TRANSLATION). // True Copy // P.S. to Judge