M.J. Peter v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 28TH DAY OF MARCH 2016/8TH CHAITHRA, 1938** **WP(C).No. 33752 of 2015 (S)** **----------------------------** ## **PETITIONER(S):** **---------------------** **M.J. PETER, AGED 58 YEARS, S/O.M.A.JOSEPH, 'MALAT'(H), NIVARATH ROAD, MARADU P.O., ERNAKULAM DISTRICT, KERALA-682304.** **BY ADVS. SRI.P.G.SURESH SRI.G.SUDHEER (THURAVOOR) SRI.RAJAN VISHNURAJ SRI.V.HARISH** ## **RESPONDENT(S):** **-----------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF FORESTS AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. KERALA COASTAL ZONE MANAGEMENT AUTHORITY SCIENCE AND TECHNOLOGY DEPARTMENT, THIRUVANANTHAPURAM REPRESENTED BY ITS MEMBER SECRETARY, PIN-695001.** **3. DISTRICT COLLECTOR** **CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** **4. DIVISIONAL FOREST OFFICER MALAYATOOR DIVISIONAL FOREST OFFICE, MALAYATOOR, ERNAKULAM DISTRICT-683587.** **5. LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED UNDER CONSERVATION OF PADDY LANDS AND WETLANDS ACT, PALLURUTHY VILLAGE, REPRESENTED BY THE AGRICULTURAL OFFICER, PALLURUTHY-682006.** ## **6. VILLAGE OFFICER** **PALLURUTHY VILLAGE, ERNAKULAM DISTRICT-682006.** **WP(C) No. NO.33752/15** **-2-** ## **7. GREATER COCHIN DEVELOPMENT AUTHORITY** **SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, KOCHI REPRESENTED BY ITS CHAIRMAN, PIN-682020.** **R2 BY ADV. SRI.K.R.SUNIL, KCZMA R7 BY ADV. SRI.K.K.ANAND, SC, G.C.D.A. R1&3-R6 BY ADV. STATE ATTORNEY R7 BY ADV. SRI.S.SREEKUMAR (SR.) R7 BY ADV. SRI.C.A.MAJEED, GCDA SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FOREST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON 28-03-2016 DELIVERED THE FOLLOWING:** **WP(C).No. 33752 of 2015 (S) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **P1 : TRUE PHOTOGRAPHS OF THE HASTY CONVERSIONS BEING CONDUCTED BY THE R5 IN THE SY.NO.142/1,2,3,4,6,7,8 OF PALLURUTHY VILLAGE.** **P2 : TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE DATABANK OF PALLURUTHY VILLAGE.** **P3 : TRUE COPY OF THE COMMUNICATION DT.22-7-2015 FROM THE OFFICE OF THE R6 TO THE TAHSILDAR, KOCHI ALONG WITH ITS TRANSLATION.** **P4 : TRUE COPY OF THE COMMUNICATION NO.347/15 DT.18-9-2015 FROM THE OFFICE OF R6 TO THE RDO FORT KOCHI ALONG WITH ITS TRANSLATION. P5 : TRUE COPY OF THE ORDER NO.1657/15 DT.19-9-2015 FROM THE OFFICE OF THE SUB COLLECTOR TO R6 ALONG WITH ITS TRANSLATION.** **P6 : TRUE PHOTOCOPY OF THE STUDY REPORT OF THE KFRI ON THE CONSERVATION OF MANGROVES IN KERALA.** **P7 : TRUE COPY OF THE COMPLAINT DT.25-9-2015 BEFORE THE RESPONDENTS NO.2 TO 4.** **P8 : TRUE PHOTOCOPY OF GO NO.1914/2015 LSGD DATED 24.6.2015 ALONG WITH ITS TRANSLATION.** **P9 : TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE FILE NOTES OF THE 7TH RESPONDENT ALONG WITH ITS TRANSLATION.** **P10 : TRUE PHOTOCOPY OF AFFIDAVIT FILED BY THE MoEF BEFORE THE HON'BLE NGT, CHENNAI AS APPLICATION NO.306/2013.** **P11 : A TRUE PHOTOCOPY OF THE LETTER NO.3/2016 DATED 20.1.2016 ISSUED FROM THE OFFICE OF THE VILLAGE OFFICER, PALLURUTHY ALONG WITH ITS TRANSLATION.** **RESPONDENT(S)' EXHIBITS ---------------------------------------** **EXT.R7A: A PHOTOCOPY OF THE PROJECT ON CAGE FARMING ECO FARM TOURISM UNDER RAMESWARAM DTP SCHEME SUBMITTED BY GCDA TO THE 1ST RESPONDENT.** **EXT.R7B: THE PHOTOGRAPHS EVIDENCING THE ACTUAL WORK AND LAY OF HE DISPUTED LAND.** ## **Rp** **//True Copy//** **P.S to Judge** ## **ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.** ================ W.P. (C) No. 33752 of 2015 ================== Dated this, the 28[th] day of March, 2016 ## **J U D G M E N T** ## _**Shaffique, J.**_ This writ petition is filed as a Public Interest Litigation alleging that the Greater Cochin Developmental Authority (for short GCDA) is reclaiming wet lands and paddy lands and causing destruction to the mangroves in a property in Palluruthy village and seeking for other consequential reliefs. 2. Petitioner claims to be a social worker who is involved in environmental protection campaigns. According to him, 7[th] respondent owns certain land in Palluruthy Village and major portion of which are protected as paddy lands and wet lands as provided under Kerala Conservation of Paddy and Wetland Act, 2008 (hereinafter referred to as the 2008 Act). It is stated that steps are being taken to reclaim and convert the paddy lands and wet lands by destructing the mangroves for an echo farm tourism. According to the petitioner, the conservation of mangroves in W.P(C) No.33752/15 ## -:2:- Kerala are highly necessary for maintaining the environment and destruction of the same has resulted in substantial damage to the environment and ecology. 3. Counter affidavit is filed by the 7[th] respondent inter alia stating that the Rameswaram West Detailed Town Planning Scheme is one of the DTP Schemes sanctioned by Government as per Government Order dated 14/6/1974. GCDA had acquired large extent of under developed and marshy lands. Land was acquired long before the Coastal Regulation Zone Notification, 1991 (For short CREZ) and the 2008 Act coming into force. According to them, in so far as the scheme is being implemented, there is no necessity for development and utilisation of the said land. According to the GCDA, the land in dispute was submerged with water and the people of the said locality uses it for fishing. The property was never utilized for paddy cultivation; instead the urban waste including septage was being deposited for long, making it a source of environmental pollution and public nuisance. It was also stated that “eco tourism” is a form of tourism involving fragile, pristine and usually protected areas, intended as a low impact and often small scale alternative to W.P(C) No.33752/15 ## -:3:- standard commercial (mass) tourism. It takes care of environmental sustainability as well and it is to augment tourism that steps are being taken in the matter. They have also produced the project on Cage Farming Eco Farm Tourism under Rameswaram DTP Scheme. It is stated that the project has been formulated in consultation with Central Marine Fisheries Research Institute (CMFRI) for cage cultivation. For the said purpose, deepening of the water body was essential. It is stated that they have not destroyed any mangrove trees as alleged whereas they have planted mangroves on the edges of the property to ensure that there is no erosion. They deny the fact that there would be any ecological imbalance on such activities being carried on by the respondent. Certain photographs are also produced which indicate the dirt and filth which had been removed from the area. 4. A memo is submitted by the learned Government Pleader which is a joint inspection report submitted by the District Collector as per directions issued by this Court. In the report, it is stated that the Member Secretary, Kerala Coastal Zone Management Authority, Science and Technology Department recommended that GCDA has to stop development activities and W.P(C) No.33752/15 ## -:4:- apply for CRZ clearance of the project with all designs, drawings and details, and CGDA has to remove all the slurry and soil filled by them in the watershed area in certain survey numbers of Palluruthy Village. The lost mangroves have to be replanted as well. The Divisional Forest Officer, Malayalattoor opined that the project area does not come under small holder as mentioned in Sec.2(db) of the Kerala Promotion of Tree Growth in Non Forest Areas (Amendment) Act, 2007. The area therefore does not come under definition of mangroves as per the rules framed under the said Act. The Revenue records indicate that the land is wet land and therefore it comes under the purview of 2008 Act. The Convenor of Local Level Monitoring Committee has stated that the land in Sy.Nos.139/1 and 139/2 has been recorded in the data bank but it is not mentioned as either paddy land or wet land, whereas the land in Sy.No.142/2 has been recorded as marshy and water logged land. It is stated that there is no cultivation in the land for the last 35 years. The District Collector opined that having gone through the opinion of above agencies, the land in Sy.No.139 alone comes under CRZ and hence construction or conversion of the land in Sy.No.139 can be continued only after W.P(C) No.33752/15 -:5:- prior approval of the concerned authority. It is also stated that the deposit of slurry in the land in Sy.No.142 has not affected the mangroves. It is further stated that the project area comes under the purview of 2008 Act and prior sanction of the Committee has to be obtained. It is also stated that project planned by GCDA is in public interest as well as for healthy and secure life in the nearby residential area. 5. The 4[th] respondent has filed a counter affidavit stating that the land does not come under the purview of the Kerala Promotion of Tree Growth in Non-Forest Areas (Amendment) Act, 2007. 6. An affidavit is filed by the 2[nd] respondent, the Kerala Coastal Zone Management Authority producing a report. It was stated that as per the approved CZMP (1996), the above site lies in CRZ Map No.33, which is a filtration pond considered as a breeding ground for backwater organisms in the CZMP and the area adjoining the filtration pond is demarcated as CRZ-I. This filtration pond has been connected with Pandarachal thodu through an opening on the north side which is closed by GCDA and the new opening is under construction on the southern side. W.P(C) No.33752/15 -:6:- As per CRZ notification, any activity in the zone including dredging and reclamation is restricted and regulated and requires clearance from the KCZMA. The Committee further observed that any Eco-tourism project in the CRZ area required prior CRZ clearance and the activities are carried on in violation of CRZ notification. 7. Reply affidavit is filed by the petitioner controverting the stand taken by various authorities. 8. Learned counsel for the petitioner also placed reliance on the judgment of the Apex Court in _**S.Jagannath v. Union of India**_ [(1997) 2 SCC 87] wherein the Apex Court held that the purpose of CRZ is to protect the ecological fragile coastal areas and to safe guard the aesthetic qualities and uses of the sea coast. It is also held that the setting up of modern shrimp aqua culture farms on the sea coast and construction of ponds and other infrastructure thereon is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast. 9. Learned counsel for the petitioner Sri. Harish Vasudevan pointed out that the area in question is clearly a CRZ W.P(C) No.33752/15 ## -:7:- area as has been observed by the Coastal Management Authority. Relying upon a DTP Scheme, GCDA has no right to change the ecological pattern of the area by involving in large scale dredging and disturbing the ecology, marine life etc. It is contended that eco tourism is not a matter which could be projected when it comes to the question of affecting the environment by creating an ecological imbalance. It is further argued that several mangroves have been cut and removed which is in total violation of the CRZ notification. Further, the GCDA cannot claim any protection based on DTP Scheme, nor any activity can be done in violation of the 2008 Act as well. It is therefore contended that all steps that have been taken have to be stopped. 10. On the other hand learned Senior Counsel Sri.S.Sreekumar assisted by Sri.C.A.Majeed appearing on behalf of the GCDA submits that the entire area was being used by certain persons in the locality for dumping waste. GCDA's intention was only to clean up the dirt that had been accumulated. They have not destroyed any mangroves whereas they have planted mangroves to effectuate an eco-tourism project. The intention was not to create any ecological imbalance or environmental W.P(C) No.33752/15 -:8:- degradation whereas the idea was to start eco-tourism project based on the project report prepared at the instance of CMFRI. The project undertaken by GCDA is in larger public interest and is welcomed by all the people in the locality and the waste dumping land is being converted as a major project taking into account the ecological aspects as well. What is intended by GCDA is to have fishing operations being carried out as advised by CMFRI. It is argued that there is no violation of CRZ regulations nor there is any violation of the 2008 Act. 11. Learned counsel Sri.K.R.Sunil, appearing for the CZMA places reliance on the report of the said authority. It is argued that having regard to the aforesaid facts in issue, if the project is mooted by GCDA, they have to take up the project after complying with all statutory formalities. 12. Though according to GCDA the project enunciated by them is in public interest and to facilitate eco-tourism, still GCDA has to comply with the statutory requirements and are bound by the restrictions imposed by such statutes. Any project of CGDA has to be implemented keeping in mind the law of the land. In this writ petition, we are concerned with two specific aspects, one is W.P(C) No.33752/15 -:9:- whether, there is any CRZ violation or there is violation of 2008 Act. As far as CRZ violation is concerned, the Coastal Zone Management Authority has already taken a stand that there is violation of CRZ. In such circumstances, we are of the view that any further activity shall be done by GCDA only after getting clearance from Coastal Zone Management Authority. The second issue is whether there is any violation of the 2008 Act. In fact no materials are available with this Court in this regard other than a report of the District Collector. Therefore, before proceeding further, GCDA will have to ensure that the property is neither wet land or paddy land as provided under the 2008 Act. According to GCDA, it is a marshy land whereas according to the petitioner, it is a wet land. If it is a wet land, there has to be an entry in the data bank or draft data bank prepared under the 2008 Act. If the data bank or draft data bank is available, GCDA has to ensure that it is not a wet land before proceeding further. If it is a wet land, GCDA will be bound by the restrictions under the 2008 Act. 13. Hence, we are of the view that this writ petition can be disposed of as under: (1) That the GCDA, before proceeding further, has to W.P(C) No.33752/15 **==> picture [27 x 9] intentionally omitted <==** ensure that this property is not included as wet land in the data bank prepared by the Local Level Monitoring Committee of the area and if the data bank is not prepared, a certificate has to be obtained from the concerned Local Level Monitoring Committee regarding this aspect. (2) If it is not a wet land, further activities in the property have to be done only with the sanction/permission of the Coastal Zone Management Authority. Sd/- **ASHOK BHUSHAN, CHIEF JUSTICE** Sd/- **A.M. SHAFFIQUE, JUDGE** Rp _//True Copy//_ _PS to Judge_