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High Court of Kerala
THE HONOURABLE CHIEF JUSTICE MR. J. CHELAMESWAR & THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH
Ansari Kannoth & Another
Versus
State Of Kerala Rep. By The Secretary & Others
W.P(C) No.12623 of 2010 & W.P(C) No.22707 of 2010
Decided on : 24-01-2011
CRZ Notification - Environmental Protection Act - Sec.5 - Violation of CRZ Notification, 1991 - Authority of Additional Director, MoEF - Map No.66A - Mangrove Theme Park - Violation of Principles of Natural Justice - CRZ-I - High Tide Line - Central Government's Power - Activities of the Society - Protection of Ecology and Environment
Fact of the Case:
The Pappinissery Eco Tourism Society established a Mangrove Theme Park on the banks of Valapattanam river, alleged to be situated in Coastal Regulation Zone-I (CRZ-I). A Public Interest Litigation was filed, and the Ministry of Environmental and Forest (MoEF) issued orders directing the Society to stop all developmental activities relating to the Theme Park. The Society challenged the orders, contending that the Theme Park was not situated in CRZ-I and that the orders were issued in violation of the principles of natural justice.
Finding of the Court:
The Court found that the Society's activities violated the provisions of the Environmental Protection Act, the CRZ Notification, 1991, and the Rules. The Court dismissed the Society's challenge to the orders issued by the MoEF and held that the Society was not entitled to the reliefs prayed for.
Issues: The issues raised by the Society included the violation of principles of natural justice, the authority of the Additional Director, MoEF, and the classification of the property in Map No.66A as arbitrary and illegal.
Ratio Decidendi: The Court held that the Society was given sufficient opportunity to present its case and that the orders issued by the MoEF were not in violation of the principles of natural justice. The Court also determined that the Additional Director, MoEF had the authority to issue the orders. Additionally, the Court found that the property where the Theme Park was established fell within CRZ-I as per Map No.66A, and the Society's activities violated the provisions of the Act and the Rules, affecting the fragile ecological system of the area.
Final Decision: The Court dismissed the Society's challenge to the orders issued by the MoEF and held that the Society was not entitled to the reliefs prayed for. The Court also closed the related Writ Petition No.12623 of 2010 in light of the decision in W.P(C) No.22707 of 2010.
Thomas P. Joseph, J.
1. Parties hereto and the exhibits are referred as they are arrayed and exhibited in W.P
(C) No.22707 of 2010.
2. Pappinissery Eco Tourism Society (for short, "the Society"), petitioner in W.P.(C ) No.22707 of 2010 is a Society registered in March, 2009 under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955. It established and started operating a Mangrove Theme Park (for short, "the Theme Park") on the banks of Valapattanam river and its branch in Pappinissery Village, Pappinissery Panchayat in Kannur District. Alleging that the Theme Park is situated in Coastal Regulation Zone-I (for short, "the CRZ-I) classified under the Coastal Regulation Zone Notification, 1991 (for short, "the CRZ Notification") issued by the Ministry of Environmental and Forest (for short, "MoEF") as per the Environmental Protection Act (for short, "the Act") and Environmental Protection Rules (for short, "the Rules"), that for establishment of the said project, mangrove forest was extensively destroyed and that the project even encroached into the river, a Public Interest Litigation was filed in this Court on April 07, 2010 by One Ansari Kannoth as W.P(C) No.12623 of 2010 arraying the said Society as respondent No.6 and praying for a writ of mandamus or any other writ, order or direction directing the said Society to close down the Theme Park; to declare that all acts of construction and developmental activities undertaken by the Society on the banks of the Valapattanam river are in violation of the Coastal Zone Management Plan and are therefore illegal, and for other reliefs. While so, a representation dated April 15, 2010 from the local Member of Parliament was received by the MoEF indicating alleged violation in CRZ in establishing the Theme Park. Pursuant to the said representation the MoEF obtained Ext.P2, report (in W.P.(C) No.22707 of 2010) from Dr.Susarla, Scientist, MoEF. Based on the said report and other relevant materials the Additional Director, MoEF by order dated July 14, 2010 (Ext.P1 in W.P(C) No.22707 of 2010) directed the Society to stop all activities relating to the Theme Park since according to him the Society is operating the Theme Park in violation of the CRZ Notification, 1991 approved by Kerala State Coastal Zone Management Authority (for short, "the KSCZMA") on September 27, 1996. Challenging the said order (Ext.P1), the Society has filed W.P(C) No.22707 of 2010. This Court passed interim order on August 19, 2010 staying operation of Ext.P1, order subject to the condition that no new constructions shall be made, no commercial activities shall be carried out and no alienation (of the project) shall be made (by the Society). Respondent No.1, Union of India challenged that order in the Supreme court in SLP (C) No.24857 of 2010. The Supreme Court disposed of the SLP by order dated August 31, 2010 directing the Additional Director, MoEF to issue notice to the Society (respondent No.1 in the SLP) under Rule 4 of the Rules within one week (from 31.08.2010). It was directed that the Society shall file its reply within two weeks from the date of receipt of notice and that the Additional Director was to decide the matter in accordance with the law. Pursuant to the said order, the Additional Director, MoEF issued Ext.P6, notice dated September 03, 2010 to the Society directing that the "matter will be heard by the undersigned on 20.09.2010 at 10.30 a.m in conference room No.402 of MoEF Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi". The Society was also informed that as per the order of the Supreme Court referred to above, the Society was to file its reply within two weeks from date of receipt of notice. Accordingly the Society gave Ext.P7, reply under Rule 4(3a) of the Rules taking up various contentions. In view of the said reply, the Additional Director, MoEF heard the Society and others. He issued Ext.P16, order dated October 06, 2010 as per which the Soc
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