Kochi Metro Rail Ltd. v. Union of India and Kerala Coastal Zone Management Authority and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944** **WP(C) NO. 13631 OF 2022** ## **PETITIONER:** KOCHI METRO RAIL LTD. REGD. OFFICE: 4TH FLOOR, JLN STADIUM METRO STATION, KALOOR, ERNAKULAM, KOCHI - 682017 REPRESENTED BY CHIEF GENERAL MANAGER (WATER TRANSPORT) BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI ## **RESPONDENTS:** 1 K.G.PRATHAPA SIMHAN S/O. GOPALA PANICKKER, A-53, ASHOKA APARTMENTS, HIGH COURT JUNCTION, ERNAKULAM, KOCHI- 682 031. 2 UNION OF INDIA, MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE, REPRESENTED BY ITS DEPUTY DIRECTOR GENERAL ON FORESS O REGIONAL OFFICE (SZ), KENDRIYA SADAN, 4TH FLOOR, E&F WINGS, 17 MAIN ROAD, KORAMANGALA II BLOCK, BANGALORE560 034. 3 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, Y REPRESENTED BY ITS SECRETARY, DIRECTORATE OF ENVIRONMENT & CLIMATE CHANGE DEVIKRIPA, PALLIMUKKU, PETTAH P.O. THIRUVANANTHAPURAM - 695 024. ADDL.R4 RAJA SIMHAN, AGED 44 YEARS, SON OF T.V.APPPUKUTTAN, NOW RESIDING AT B-2, ASHOKA APARTMENTS, MARINE DRIVE, SHANMUGHAM ROAD, KOCHI-682035 ADDL. R4 IS IMPLEADED AS PER ORDER IN I.A. NO. 1 OF 2023 DATED 27.02.2023) BY ADVS. SAHASRANAMAN PB MANU S., ASG OF INDIA SRI.M.P.PRAKASH, SC, KCZMA T.S.HARIKUMAR(K/782/1989) W.P.(C).13631/2022 2 ## G.N.DEEPA(K/001665/1999) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON 02.03.2023 DELIVERED THE FOLLOWING: W.P.(C).13631/2022 3 ## **JUDGMENT** Dated this the 2[nd] day of March, 2023 The petitioner, the Kochi Metro Rail Limited, has been assigned the task of executing an urban water transport project named 'the Kochi Water Metro Project' on behalf of the Government of Kerala. The project is aimed as a user oriented and socially inclusive transport system with inter model connectivity between jetties, bus terminals and metro network. The project envisions 15 identified routes connecting 38 terminals and 10 island communities with channel length of 78.2 kms. One among the terminals is the High Court Terminal, designed as an open pile structure with floating pontoons to facilitate free flow of water. The design, together with the plan and elevation, was approved by the State Wetland Authority of Kerala and the Kerala Coastal Zone Management Authority. Based on the clearance/No Objection issued by the statutory authorities, final clearance for the project was sanctioned by the Ministry of Environment, Forest and Climate Change, Union of India as per Ext. P1 dated W.P.(C).13631/2022 4 ## 01.10.2019 and thereupon, the work commenced. 2. While so, one Joe Joseph, a resident of Ashoka Apartments situated adjacent to the proposed terminal filed W.P.(C) No. 9959 of 2020, alleging that the terminal was proposed as an 18 metre high building, which, if constructed, will obstruct light and free flow of air to the Ashoka Apartments. The petitioner also alleged that nearly 3000 sq. feet of backwaters had been illegally reclaimed for carry out the construction. W.P. (C) No. 9959 of 2020 was dismissed by Ext. P2 judgment. The contention that the proposed construction is actually a building and not a boat jetty and hence the prohibition under Rule 4(1)(vi) of the Wetlands (Conservation and Management) Rules, 2010 against constructions other than jetties, was rejected. The learned Single Judge held that construction of the High Court Terminal is for boat jetty and the term 'boat jetty' would include not only the landing terminal but also the appurtenant building. 3. Later, W.P.(C) No. 14014 of 2021 was filed by the first respondent, another resident of Ashoka Apartments, alleging W.P.(C).13631/2022 5 that the terminal is being constructed by reclaiming Vembanad Backwaters in violation of the Coastal Regulation Zone Notification, 2011 thereby causing serious threat to the coastal ecology. The first respondent attempted to distinguish the Ext. P2 judgment by claiming that the issue whether the reclamation and construction of terminal building on reclaimed land did not arise for consideration in the earlier writ petition. In his writ petition the respondent had sought the following reliefs; i. To issue a writ of certiorari calling for the records leading to Exhibits P1 recommendation and P2 environmental clearance and quash the same in so far as it allows the reclamation and construction of High Court Terminal" as a part of "Kochi Water Metro Project"; ii. To issue a writ, direction or order in the nature of mandamus commanding the 3rd respondent to remove the constructions which is already made in the backwaters under the guise of High Court Terminal" as a part of "Kochi Water Metro Project" and restore the water body within a time limit failure to which the 2nd respondent be directed to take immediate steps to remove the said construction; iii. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the 2nd respondent to consider Exhibit.P5 representation made by this petitioner to cancel the Exhibit.P1 CRZ clearance granted W.P.(C).13631/2022 6 to the 3rd respondent in so far as it relates to the High Court jetty, Major Terminal as part of Kochi Metro Project; iv. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the 1st respondent to consider Exhibit.P6 representation made by this petitioner to cancel the Exhibit.P2 environmental clearance given to the 3rd respondent in so far as it relates to the High Court jetty, Major Terminal as part of Kochi Metro Project; v. Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case so as to protect the coastal ecology of the Vembanad backwaters. 4. After considering the rival contentions _in extenso_ , the Division Bench disposed of the writ petition by Ext.P4 judgment, directing the Union of India and the Kerala Coastal Zone Management Authority to consider Exts. P6 and P7 representations of the petitioner, requesting to quash the environmental clearance and sanction accorded for construction of the High Court Terminal. Even though the respondent filed SLP against Ext. P4 judgment, that was was dismissed by Ext. P5 order. 5. Although the issue ought to have attained finality by dismissal of the SLP, the respondent filed O.A. No. 34 of 2022 W.P.(C).13631/2022 7 ## (Ext.P6) before the National Green Tribunal raising the very same allegations and seeking the following reliefs; i. Allow the application by directing the 3[rd] respondent to remove all the constructions which was made on the Pembanad estuary which lies on the seaward side of the Cochin Marine Drive, Kochi Water Metro Terminal, Kochi Water Metro Project within a time limit and to restore the coastal ecology in the same manner as lied before; ii. To appoint an appropriate authority to assess the damages that has been caused to the ecology on account of the constructions made by the 3[rd] respondent for the Kochi Water Terminal, as stated above and recover the said damages from the concerned persons responsible for the same and use the same for maintaining the coastal ecology; iii. Pass such other orders or direction which this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case so as to protect the Vembanad Estuary. The original application was admitted by the NGT passed Ext. P7 ex parte order, appointing a Joint Committee for inspecting the construction and submitting a factual as well as action taken report regarding the violations, if any. This writ petition is filed seeking a declaration that, in the light of Exts. P2, P4 and P5, Exts.P6 and P7 are illegal and unsustainable. The other prayer is to quash the records leading to Exts. P6 and P7, being in violation of Exts. P2, P4 and P5. W.P.(C).13631/2022 8 6. Heard Senior Advocate K. Jaju Babu for the petitioner, Adv. P.B. Sahasranaman for the first respondent, Adv. M.P. Prakash for the Coastal Zone Management Authority and Adv. S. Manu, the Deputy Solicitor General for the Ministry of Environment, Forest and Climate Change, Government of India. 7. Sr. Adv. Jaju Babu contended that the NGT committed gross illegality in taking cognizance of an issue that had attained finality by Exts. P2 and P4 judgments and the order in Ext. P5 SLP. The other illegality is the constitution of an expert committee without hearing the petitioner. The NGT had thus acted in violation of the principles of judicial discipline, which every court and tribunal is bound to adhere. Reliance is placed on the decision in **State of Andhra Pradesh v. Raghu Ramakrishna Raju Kanumuru (M.P.)** [(2022) 8 SCC 156) wherein the Apex Court had occassion to observe that, disrespect to the constitutional ethos and breach of discipline have a great impact on the credibility of judicial institutions and would encourage chance litigation. It is submitted that Ext. P6 application before the NGT is a classic example of W.P.(C).13631/2022 9 chance litigation and forum shopping. 8. Adv. P.B. Sahasranaman, learned Counsel appearing for the first respondent raised objection as to maintainability of the writ petition in view of the remedy of appeal to the Supreme Court under Section 22 of the National Green Tribunal Act, 2010. It is contended that the efficacious alternative remedy and ouster of this Court's jurisdiction as per Section 22 should have dissuaded this Court from entertaining the writ petition. In support of the contention, reliance is placed on the decision in **Municipal Corporation of Greater Mumbai v. Ankita Sinha and Ors.** (AIR 2021 SC 5147). It is contended that the NGT was justified in entertaining Ext.P6 Original Application and granting Ext.P7 order since an environmental issue is involved. The NGT Act being a special enactment, Exts. P2 and P4 judgments do not impede the NGT from considering the issue. Moreover, the direction in Ext.P7 is only to constitute a Joint Committee for inspecting the site and submitting an action taken report. The order is well within the powers of the NGT, as the Tribunal is vested with the powers of a civil court, which includes the W.P.(C).13631/2022 10 power to appoint Commission under Order XXVI Rule 9 of Code of Civil Procedure. Moreover, the objection against inspection by the Joint Committee shows that the construction is in violation of the CRZ notifications. It is submitted that Ext. P4 judgment was clarified by the Division Bench as per Ext.R1(c) order in a contempt case filed by the first respondent. Therein, after taking note of an order passed by the KCZMA, in purported compliance of the direction in Ext.P4 judgment, the Division Bench observed that it is always open for the first respondent to challenge that order before the competent forum, thus acknowledging the NGTs authority to decide the issue 9. Adv. M.P. Prakash appearing for the KCZMA submitted that sanction for constructing the High Court Terminal was granted after considering all relevant aspects. Pursuant to Ext.P4 judgment, the authority considered the matter again and the allegations raised by the first respondent to be without substance. Therefore, the first respondent's representation was rejected in the 124th meeting of the KCZMA held on 29.07.2022 and the decision communicated to the first W.P.(C).13631/2022 11 respondent as per Ext.R1(b) letter dated 04.08.2022. 10. For answering the objection as to the maintainability of the writ petition, learned Senior Counsel relied on the recent decision of the Apex Court in **Madhya Pradesh High Court Advocates Bar Association and Another v. Union of India** **and Another** (2022 SCC Online SC 639) making it clear that, as against the orders of the NGT, the Supreme Court ought to be approached if a substantial question of law arises. Otherwise the aggrieved person can approach the High Court under Articles 226 and 227 of the Constitution of India. 11. Under normal circumstances, this Court would have relegated the petitioner to the remedy under Section 22 of the NGT Act, in view of the legal position, as clarified by the Apex Court in **Municipal Corporation of Greater Mumbai** (supra), the concluding portion of which reads as follows; “24.4. The above discussion would advise us to say that the NGT was conceived as a specialized forum not only as a like substitute for a Civil Court but more importantly to take over all the environment related cases from the High Courts and the Supreme Court. Many of those cases transferred to the NGT, emanated in the superior Courts and it W.P.(C).13631/2022 12 would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT. 24.5. The NGT is a Tribunal with sui generis characteristic, with the special and all encompassing jurisdiction to protect the environment. Besides its - adjudicatory role as an appellate authority, it is also conferred with the responsibility to discharge role of supervisory body and to decide substantial questions relating to the environment. The necessity of having a specialized body, with the expertise to handle multidimensional environmental issues allows for an all- encompassing framework for environmental justice. The technical expertise that may be required to address evolving environmental concerns would definitely require a flexible institutional mechanism for its effective exercise.” 12. Here, the respondent had approached the NGT after suffering Ext.P4 judgment. A comparison of the reliefs sought in W.P.(C) No. 14014 of 2021 and Ext. P6 Original Application shows that, except the additional prayer for constituting an expert committee, the other relief is substantially the same. Being so, the NGT should not have entertained the O.A., when Ext.P4 judgment had attained finality by the dismissal of the SLP as per Ext.P5 order of the Supreme Court. This view was expressed by the Apex Court in **State of Andhra Pradesh** (supra), the contextually relevant portion of which reads as under; W.P.(C).13631/2022 13 “11. In any case, no law is necessary to state that insofar as the Tribunals are concerned, they would be subordinate to the High Court insofar as the territorial jurisdiction of the High Court is concerned. A reference in this respect was also made to the judgment of the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and Others. 12. We are, therefore, of the considered view that it was not appropriate on the part of the learned NGT to have continued with the proceedings before it specifically, when it was pointed that the High Court was also in seisin of the matter and had passed an interim order permitting the construction. The conflicting orders passed by the learned NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over orders passed by the statutory tribunals.” The illegality committed by entertaining the original application is aggravated Ext.P7 ex parte order constituting an expert committee. That too, in spite of being aware of Ext.P4 judgment of this Court. In this context, it may be apposite to extract the following paragraphs from **Official Liquidator v. Dayanand and Ors.** [(2008) 10 SCC 1], wherein the Apex Court expressed discontent about the rampant violation of judicial discipline by the High Courts rendering different opinions on the same issue. W.P.(C).13631/2022 14 “90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law." W.P.(C).13631/2022 15 The challenge against maintainability of the writ petition is liable to be rejected in the light of the legal position laid down in **Madhya Pradesh High Court Advocates Bar Association and Another** (supra). One of the questions considered in that decision was whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under Section 22 of the NGT Act is ultra vires to the Constitution? The Apex Court answered the question as under; “24. The petitioners have also pleaded that instead of appeal to the Supreme Court under S.22 from the orders passed by the NGT, an appeal mechanism as a matter of right should also be provided before the concerned High Courts. According to them, appeal to the Supreme Court is inadequate and unaffordable and therefore inaccessible. On this aspect it needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute (Inter alia, Electricity Act, 2003; Telecom Regulatory Authority of India Act, 1997) against the decision of a tribunal (Inter alia, Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007), the remedy under Art.226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under S.22 of the NGT Act, is limited to the grounds under S. 100 of the CPC and the Supreme Court does not function as a regular first appellate Court. However, under Art 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ((1948) 1 KB 223), are available for an aggrieved party Subject to discretion being exercised, the affected litigants can move High Court under Art W.P.(C).13631/2022 16 226 or 227 and in such Cases, a SLP under Art. 136 of the Constitution could also be maintained to the Supreme Court from the High Court's verdict. 25. Also importantly, the right to appeal before the High Court is a creature of the statute and is not an inherent right. The provision for appeal to High Court should not therefore be created by issuing a writ of Mandamus as that would be legislating through judicial order, and would impinge upon the well- founded concept of separation of powers (2017 KHC 6343 (2017) 7 SCC 221 AIR 2017 SC 2406). 26. The options available to a litigant to either move to the Supreme Court in a Case where a substantial question of law arises or proceed under Art.226 or 227 must not also be overlooked. If necessary, a party can also approach this Court by way of an Art. 136 petition. With such choices being available for a party no rational justification is found for striking down S.22 of the Act which provides for a direct appeal to the Supreme Court.” 13. As regards the contention that, by virtue of the observation in Ext.R1(c) order, the Division Bench acknowledged the NGT's authority, it is essential to understand the context in which the Division Bench made that observation. The first respondent had filed a contempt case against the Secretary of the KCZMA, alleging willful violation of this courts direction to consider the petitioner’s representation. Pending the contempt case, the KCZMA rejected the representation and intimated the decision through Ext. R1(b) W.P.(C).13631/2022 17 communication. When the decision was brought to the notice of the Division Bench, the following observation was made; “11. If, for any reason, the petitioner has grievance regarding nonconsideration of the contentions raised, it is always open to him to challenge the same before the competent Forum." Thus the first respondent was given the liberty to challenge only the decision taken by the KCZMA based on the direction in Ext.P4 judgment. The observation of the Division Bench does not entitle the first respondent to proceed with Ext.P6 and the NGT to pass orders thereon. It is pertinent to note that the first respondent has already preferred an appeal before the National Green Tribunal against Decision No.124.03.02 of the KCZMA, based on Ext.P4 judgment. It is also informed that the first respondent is no more and the additional 4th respondent is now espousing his cause before the NGT. 14. For the aforementioned reasons, I find the exercise of jurisdiction by the NGT, in so far as entertainment of Ext.P6 Original Application and issuance of Ext.P7 order are concerned, to be patently illegal and unsustainable. W.P.(C).13631/2022 18 In the result, the writ petition is allowed. Ext.P7 and further proceedings in O.A. No. 34 of 2022 on the files of the National Green Tribunal, Southern Zone, Chennai are quashed. **Sd/-** **V.G.ARUN** **JUDGE** sb W.P.(C).13631/2022 19 ## **APPENDIX OF WP(C) 13631/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE ENVIRONMENTAL AND CRZ| ||CLEARANCE DATED 1.10.2019 GIVEN BY THE 210| ||RESPONDENT.| |Exhibit P2|TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.| ||9959/2020 DATED 13.01.2021 OF THIS 2-32| ||HON'BLE COURT.| |Exhibit P3|TRUE COPY OF W.P.(C).NO. 14014/2021 ON| ||5.7.2021 FILED BY THE 1% RESPONDENT (WITHOUT| ||33-43 EXHIBITS)| |Exhibit P4|TRUE COPY OF THE JUDGMENT IN W.P.(©). NO.| ||14014/2021 DATED 31.08.2021 OF THIS HON'BLE| ||COURT.| |Exhibit P5|TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO| ||APPEAL (C) NO, 15447/2021 DATED 10.12.2021 OF| ||THIS HON'BLE SUPREME COURT.| |Exhibit P6|TRUE COPY OF O.A. NO. 34/2022 DATED| ||10.03.2022 FILED BY THE 1ST RESPONDENT BEFORE| ||THE NATIONAL GREEN TRIBUNAL (WITH OUT| ||ANNEXURES).| |Exhibit P7|TRUE COPY OF THE ORDER IN O.A. NO.34/2022| ||DATED 21.3.2022 OF THE NATIONAL GREEN| ||TRIBUNAL (NGT).| |RESPONDENT EXHIBITS|| |Exhibit.R.1 (a)|TRUE COPY OF THE ORDER IN I.A. NO. 1/2021 IN| ||W.P.(C) NO. 14014 OF 2021 DATED 6.12.2021 OOF| ||THIS HON'BLE COURT.| |RESPONDENT EXHIBITS|| |Exhibit.R.1 (B)|TRUE COPY OF THE COMMUNICATION DATED 04-08-| ||2022 ISSUED BY THE 2ND RESPONDENT| 20 ## W.P.(C).13631/2022 Exhibit R.1 (C) TRUE COPY OF THE JUDGMENT RENDERED IN CON. CASE(C).NO.1438 OF 2022, DATED 27-09-2022 OF THIS HON'BLE HIGH COURT