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2023 Supreme(Online)(KER) 44165
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, Murali Purushothaman, J
FRIENDS OF BHARATHAPUZHA – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) NO. 15940 OF 2022
For the Appellants/Petitioners: V.K.REMA, SMRITHI K.SANDESH, RAJA SHANKAR V.
For the Respondents: SRI.TEK CHAND V, SR.GOVERNMENT PLEADER, MANU S., DSG OF INDIA
Judicial restraint is essential in reviewing governmental policy decisions, especially when no fundamental rights are violated.
Headnote:(A) Environment Protection Act, 1986; Kerala Water (Control of Pollution) Act, 1974 - Writ petition for stopping the construction of Koottakadavu regulator - Petitioner raised concerns over flood risks and inadequate design due to prior disasters in 2018 and 2019 - Respondents defended the construction citing regulatory compliance and necessary studies affirming its safety and environmental benefits - Supreme Court precedent established that courts should not interfere in policy-making unless fundamental rights are violated or laws breached - Court found no malafides or abuse of power in the governmental decision to construct the regulator. (Paras 17-20)
(B) Judicial Review - Scope - Courts refrain from assessing technical feasibility or policy decisions unless they infringe upon statutory or constitutional rights. (Paras 20-21)
Facts of the case:
Petitioner alleged that the current construction of Koottakadavu regulator will exacerbate flooding risks due to unscientific planning, despite its benefits highlighted by respondents.
Findings of Court:
The court found no valid ground to intervene, affirming the decision-making process followed by the government.
Issues: Key issues addressed included whether the construction was legally justified and if it respected environmental standards.
Ratio Decidendi: Governmental decisions on infrastructure projects require deference unless shown to be irrational, arbitrary, or in breach of law.
Result: Writ petition dismissed.
| Table of Content |
|---|
| 1. petition's concern over regulator construction and its impact on flooding. (Para 1 , 2 , 3) |
| 2. criticism from environmental committee and previous attempts to address concerns. (Para 4 , 5) |
| 3. justification by government on regulators and infrastructure based on environmental flow. (Para 7 , 8 , 9 , 10) |
| 4. court's emphasis on technical compliance and deference to government authority. (Para 11 , 12 , 13) |
| 5. (Para 14 , 15 , 16) |
| 6. final ruling on the petition dismissing due to lack of legal standing. (Para 17 , 18 , 19) |
JUDGMENT
Murali Purushothaman, J.
Friends of Bharathapuzha, a Society registered under the Societies Registration Act, 1860, with the main objective of rejuvenating Bharathapuzha river, represented by its President, Dr. E. Sreedharan, a world renowned engineer, has approached this Court espousing the 'menace created on the flow of the river due to the unscientific and ill thought out constructions being made on the river in particular the Kottakadavu regulator which is being built very close to the confluence of the Bharathapuzha and its tributary Thoothapuzha'.
2.According to the petitioner, large number of dams, ill- planned regulators and check dams have been built on the Bharathapuzha river and its tributaries, which have completely distorted and disturbed the flow of the river.
3.The petitioner states that, a regulator (Koottakadavu regulator) across Bharathapuzha river is being built at Kottakadavu in Anakkara Panchayat, Palakkad district under the aegis of the Irrigation and Water Resources Department and the Public works Department in an unscientific manner causing much harm and hardship rather than any much needed solace to the residents or farmers of the area. It is stated that the site for the regulator is about 500m downstream of the junction where Thuthapuzha joins Bharathapuzha and at this location, there is a constricted neck in the river and Bharathapuzha in this location has a width of around 350 mtrs and Thuthapuzha has a width of about 60 mtrs before they combine and the volume and flow of the combined waters is large and forceful. The petitioner states that the Koottakadavu regulator has been designed to have 21 Nos of piers of which 19 piers of 1 ½ meters have already been built and there are 18 gaps between the piers with 12 meter shutters to be fitted between them. According to the petitioner, the total water way provided in the regulator is only 234 meters which is the physical width, but during floods, piers which are 1.5m in width cause a further squeeze of 1 to 1.5m in each span due to water velocity within the span and therefore the effective vent way width available for the flood waters is only about 200m and this reduced vent way of 200 meters cannot evacuate the combined floods of Bharathapuzha and Thuthapuzha with the result flood waters will head up and over flow the left bank as it happened during the floods in 2018 and 2019. The petitioner points out that the flood inundations maps of District Disaster Management Authority, Palakkad shows the impugned area around the Koottakadavu regulator as high risk area and contends that the added influence of the regulator therefore will aggravate the flooding and cause greater damage than what is already predicted by the District Disaster Management Authority.
4. According to the petitioner, the Committee on Environment (2017-2019), in the 5th report placed before the Kerala Legislative Assembly on 23rd August, 2017, made severe criticism on the unmitigated check dams built across the Bharathapuzha and the Committee in their findings concluded that, part of the steep decline of the river was due to the unchecked constructions across and on the river banks.
5. It is stated that, pursuant to a meeting by the President of the petitioner society with the Hon'ble Minister for Irrigation and Water Resources and officers of the various departments involved in the design and building of the regulator and dams on the Bharathapuzha, on 09.1
