IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 12623 of 2010(S) -------------------------- PETITIONER(S): --------------- ANSARI KANNOTH,'SANTHWANAM', P.O.MATTANNUR,KANNUR DISTRICT. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.M.MUHAMMED SHAFI RESPONDENT(S): --------------- 1. STATE OF KERALA REP.BY THE SECRETARY, DEPARTMENT OF FOREST AND WILD LIFE,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR,KANNUR. 3. THE TAHSILDAR,KANNUR. 4. THE VILLAGE OFFICER,PAPPINISSERY, KANNUR DISTRICT. 5. THE SECRETARY,PAPPINISSERY GRAMA PANCHAYATH,KANNUR DISTRICT. 6. THE PAPPINISSERY ECO TOURISM SOCIETY, PAPPINISSERY,KANNUR DT.,REP.BY ITS CHAIRMAN MR.UNNIKKANNAN MASTER. 7. SECRETARY,DEPARTMENT OF ENVIRONMENT, SECRETARIAT,THIRUVANANTHAPURAM. 8. SECRETARY,THE MINISTRY OF ENVIRONMENT AND FOREST,GOVT.OF INDIA,PARYAVARAN BHAVAN, LODHI ROAD,NEW DELHI-3. WP(C) No.12623/2010 2 9. THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY,SASTHRA BHAVAN,PATTOM, THIRUVANANTHAPURAM. ADV. SRI.S.RAMESH,SC,COASTAL ZONE MANAGEMENT FOR R9 SRI.K.V.SOHAN FOR R5 SMT.SREEJA SOHAN.K. FOR R5 SENIOR GOVERNMENT PLEADER SHRI BENNY GERVASIS FOR R1TO R4 & R7 SRI.P.B.SAHASRANAMAN FOR R6 SRI.T.S.HARIKUMAR FOR R6 SRI.P.U.SHAILAJAN FOR R6 SRI.K.JAGADEESH FOR R6 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, ALONG WITH WPC NO. 22707 OF 2010 THE COURT ON 24/01/2011 DELIVERED THE FOLLOWING: WP(C) No.12623/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE NEWS ITEM ALONG WITH THE PHOTOGRAPH PUBLISHED IN THE CHANDRIKA DAILY DATED 8.3.2010 ALONG WITH ITS ENGLISH TRANSLATION EXT.P2 TRUE COPY OF THE PHOTOGRAPHS EXT.P3 TRUE OPY OF THE NEWS ITEM ALONG WITH THE PHOTOGRAPH PUBLISHED IN THE THEJAS DAILY DATED 18.3.2010 ALONG WITH ITS ENGLISH TRANSLAION EXT.P4 TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DATED 20.3.2010 ALONG WITH ITS ENGLISH TRANSLATION EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 17.03.2010 ALONG WITH ITS ENGLISH TRANSLATION' EXT.P6 TRUE COPY OF THE CIRCULAR BEARING NO.C.321688-96 DATED 17.7.1996 ALONG WITH ITS ENGLISH TRANSLATION EXT.P7 TRUE COPY OF THE CIRCULAR BEARING NO.48/ENV/2006/CZMA RESPONDENTS' EXHIBITS: EXT.R1(A) A PHOTOSTAT COPY OF THE REPORT SUBMITTED BY THE ADDITIONAL DIRECTOR, MINISTRY OF ENVIRONMENT & FOREST, NEW DELHI EXT.R1(B) A PHOTOSTAT COPY OF THE ORDER NO.2-3/2010-I.A-III DATED 6.10.2010 ISSUED BY THE ADDITIONAL DIRECTOR TO THE PRESIDENT OF THE 6TH RESPONDENT SOCIETY AND THE CHAIRMAN OF THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY, THIRUVANANTHAPURAM EXT.R5(a) TRUE COPY OF THE DECISION OF THE PANCHAYATH DATED 24.12.2009 ON THE APPLICATION SUBMITTED BY 6TH RESPONDENT EXT.R5(b) TRUE COPY OF THE DECISION OF THE PANCHAYATH DATED 24.12.2009 ON THE APPLICATION SUBMITTED BY 6TH RESPONDENT EXT.R5(c) TRUE COPY OF THE NOTIFICAION (GO(Rt) 9082/08/TSM DATED 22.11.2008 EXT.R6(a)TRUE COPY OF THE REGISTRATION CERTIFICATE WITH REG. NO.S/70/2009 EXT.R6(b) TRUE COPY OF THE DETAILS REGARDING THE EXPENDITURE FOR THE CONSTRUCTION OF THE VALAPATTANAM BOAT JETTY – KANDITHODU ROAD WHICH WAS OBTAINED BY RIGHT TO INFORMATION ACT WITH ENGLISH TRANSLATION OF EXT.R6(b) EXT.R6(A) TRUE OPY OF THE ORDER NO.2-3/2010-IA-III, DATED 14.07.2010 OF THE 2ND RESPONDENT (AS PER IA NO.10895/2010) J. CHELAMESWAR, C.J. & THOMAS P.JOSEPH, J. =========================================== W.P(C) No.12623 of 2010 and W.P(C) No.22707 of 2010 ============= = = = = = ======================= Dated this the 24th day of January, 2011 J U D G M E N T Thomas P.Joseph, J. 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 W.P(C) Nos.12623 & 22707 of 2010 -: 2 :- 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 W.P(C) Nos.12623 & 22707 of 2010 -: 3 :- 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, W.P(C) Nos.12623 & 22707 of 2010 -: 4 :- 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 Society was directed to stop all developmental activities relating to construction of the Theme Park and to withdraw the brochure titled “Pappinissery Eco Tourism Society”. Certain directions were also issued. The Society thereon, with the leave of this Court amended Writ Petition No.22707 of 2010 whereby apart from the original challenge to Ext.P1, Exts.P6 and P16 are also challenged on various grounds. The Society has sought for a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts.P1, P6 and P16 and quash the said orders and notice and to issue a writ, direction or order declaring that categorization of property of the Society in Map No.66A of the Kerala State Coastal Zone Management Plan (for short, “the KSCZMP”) as arbitrary and illegal. The Society contends that Ext.P16, order has been passed in violation of the principles of natural justice in that, the Society was not given sufficient opportunity to place its case before the Additional Director who issued Ext.P16, order. Exhibit P6, notice has been issued in violation of Rule 4 of the Rules. Nor does Ext.P6 contain the materials based on which the Society was required to give its reply. Exhibit P16, W.P(C) Nos.12623 & 22707 of 2010 -: 5 :- order is not in accordance with Rule 4 of the Rules. The Central Government has delegated its power under Sec.5 of the Act to the State Government as per Notification dated February 10, 1988 and hence it was the State Government which had the authority to issue any order under Sec.5 of the Act. The Central Government therefore, has no authority to interfere in the matter. At any rate under Section 5 of the Act, it is “the Central Government” which has the power to issue any order and order has to be issued in the name of the President of India under Article 77 of the Constitution of India. Hence the Additional Director, MoEF could not have issued Exts.P1, P6 and P16 It is also contended that the Theme Park is not situated in CRZ-I as contended by the MoEF. Since the Central Government, the State Governments or the KSCZMA has not prepared a local coastal zone management plan till date, restrictions as per the coastal zone regulations cannot be included within the KSCZMP of the local Panchayat concerned. Accordingly the property where Theme Park is situated cannot be brought within the category of CRZ areas. It is also contended that Map No.66A prepared by the KSCZMA is arbitrary and illegal. The said Map does not specify the area regarding which it is prepared. There is no measurement, resurvey or other particulars of the land given in the said Map to identify the property. It is not a W.P(C) Nos.12623 & 22707 of 2010 -: 6 :- plan marking the CRZ area and cannot be adopted for any purpose, it is contended. 3. Respondent Nos.1 to 3 filed statement in answer to the averments in the Writ Petition concerning them. It is contended that as per information provided by the KSCZMA who are the custodian of Coastal Zone Management Plan of Kerala the site (where the Theme Park is established) falls within the CRZ-I and attracted provisions of the Coastal Regulation Zone Notification, 1991 and hence all developmental activities in the CRZ shall only be in accordance with the CRZ Notification of 1991. No permission has been sought for or obtained by the Society from the MoEF for establishment of the Theme Park. It is contended that direction of the Supreme court in the order in the Special Leave Petition was fully complied. Exhibit R1 (a) is the copy of the report submitted by the Additional Director, MoEF in the matter stating the steps taken for hearing and replying to the submissions made on behalf of the Society at the time of hearing pursuant to Ext.P6. 4. Respondent No.4, the KSCZMA has filed a counter affidavit contending that the property of the Society where Theme Park is established falls within CRZ-I where larger part is covered by mangroves. The mangrove areas on the banks of Valapattanam river in W.P(C) Nos.12623 & 22707 of 2010 -: 7 :- Kannur District are classified as CRZ-I (category I) areas which are ecologically sensitive and important. Although the object of the Society is to promote eco-tourism, the same is not a permissible activity under para 6(2) of the Norms for Regulation of Activities under the CRZ Notification, 1991. The area is clearly demarcated in the approved Coastal Zone Management Plan (for short,”the CZMP”) of the State in Map No.66A, copy of which was given to all the Panchayats. Mangrove area being classified as CRZ-I does not require a map to identify the CRZ status. As per guidelines issued by the MoEF, demarcation of High Tide Line (for short, “the HTL”) and Low Tide Line (for short, “the LTL”) shall be made on the Coastal Zone Management Map of Scale 1:12,500 prepared by authorised agencies identified by the Central Government. Accordingly, the Centre for Earth Science Studies (for short, “the CESS”) has prepared the Kerala Coastal Zone Management Plan in 1995 which was approved by the MoEF. As per Map No.66A, property where the Society has established the Theme Park is within the CRZ-I. In the said Map, name of the river adjoining the bridge and the National Highway are shown. As per the CRZ Notification, (1991) mangrove areas are considered ecologically sensitive and important. Before establishing the Theme Park, the Society did not obtain clearance from the KSCZMA. It is contended that the Society has W.P(C) Nos.12623 & 22707 of 2010 -: 8 :- established Theme Park in R.S. No.216 and 217. Mangrove areas on the banks of Valapattanam river in Kannur District are classified as CRZ-I. The Theme Park is developed on the land which are tidal flats with mangroves vegetation. Within the Park a number of facilities have been established on raised platforms by digging the surrounding area and using excavated soil. That has changed the mangrove eco system drastically in the CRZ-I. Boardwalk, boat jetty and roads have been constructed inside the Park. The Society has constructed observation platforms right on the water in the river which is an encroachment on public property. Road was constructed by widening and raising the existing bund. All those activities are violation of the CRZ Notification, 1991 and those activities do not come within the permitted activities under the said Notification. Exhibit R4a is the report dated August 11, 2010 submitted by the KSCZMA to the MoEF on the Mangrove Theme Park of the Society. 5. Respondent No.5, the Grama Panchayat has filed a counter affidavit in W.P.(C) No.12623 of 2010 claiming that the area is already an industrially developed area and denying that Valapattanam river area comes within CRZ-I. The entire area on the banks of Valapattanam river (within the Panchayat) is not CRZ-I. The Society requested permission to put up two temporary boat jetty and a W.P(C) Nos.12623 & 22707 of 2010 -: 9 :- wooden bridge over “vachal thodu”. The area was unoccupied and a dumping place for waste materials. When the Society came up with the idea of protecting the area, the Panchayat after deliberations decided to grant permission without affecting ecology and environment. 6. The Society has filed a reply affidavit dated January 3, 2011 disputing the contentions raised by the contesting respondents and asserting averments in the Writ Petition. It is contended that the Society has not effected any change to the nature and condition of the property from that in the year, 1991. Contesting respondents have not even whispered about the oldness of mangroves in the property. It is not correct to say that a local level map is not required to identify the CRZ status. Map No.66A cannot be relied. Attempt of the Society is only to implement Exts.P20 and 21, projects. The Society is getting requests from various educational and other organisations to provide facility to conduct study and research about the mangroves and related eco-system. (See Exts.P22 to P24). The existing facilities and nature of the property are helpful for students and research scholers to conduct their study. It is contended that action has been taken against the Society only due to political reasons. 7. We have heard the learned counsel for the parties to the W.P(C) Nos.12623 & 22707 of 2010 -: 10 :- Writ Petitions. Learned counsel for the Society raised the following points for our decision: (1) Principles of natural justice is violated as no sufficient opportunity was given to the Society to give its reply and at any rate Ext.P6, notice does not comply with the requirements of Rule 4 of the Rules and hence is illegal. (2) The Additional Director, MoEF who issued Exts.P1, P6 and P16 has no authority to issue such orders and notice and the same therefore, are illegal. (3) Property of the Society is not shown to be under CRZ-I. Map No.66A prepared by the KSCAMA cannot be relied upon, is arbitrary and illegal. 8. POINT NO.1. It is contended that the Society was not given sufficient opportunity to give its reply and place all its materials before the Additional Director, MoEF who passed Ext.P16, order. Learned counsel contended that under Rule 4 of the Rule any direction issued under Sec.5 of the Act shall be in writing and specify the nature of the action to be taken and the time within which it shall be complied by the person, officer or authority to which direction is given. Under W.P(C) Nos.12623 & 22707 of 2010 -: 11 :- sub-rule (3a) of Rule 4, the person, officer or authority to whom any direction is sought to be issued shall be served with a copy of the proposed direction and shall be given not less than 15 days from the date of service of notice to file, with an officer designated in that behalf the objections if any to the issue of the proposed direction. According to the learned counsel, sufficient time as stated above was not given to reply to Ext.P6, notice. It is contended that Ext.P6, notice does not contain details of materials on which action is proposed, nature of the action proposed and hence is violative of the Rules and principles of natural justice. 9. It was contended before the Additional Director, MoEF on behalf of the Society (at the time of hearing on September 20, 2010) that Ext.P6, notice was served on the Society on 08.09.2010 and under Rule 4(3a) of the Rules it had time upto 20.9.2010 to give reply while as per Ext.P6, notice the Additional Director has limited that time till 17.9.2010 and thus violated sub-rule 3(a) of Rule 4 and the order of the Supreme court in the SLP. In response to that contention, it is stated in Ext.R1A (inner page 3) that during the hearing the Additional Director had agreed to the request for providing four (4) more days i.e., till 24.9.2010 to all the parties to submit additional information including those sought during the hearing. Accordingly, W.P(C) Nos.12623 & 22707 of 2010 -: 12 :- letter No.2-3/2010-IA-III dated 21st September, 2010 was issued. In response to that letter, the Society has given additional information (Ext.P14) which was received by the Additional Director on September 27, 2010. This fact is not disputed. Thus sufficient time was granted to the Society and others concerned to supply additional information on the subject and that has been availed by the Society. 10. The requirement of compliance with principles of natural justice is that there must be fair play in the action. Mere technical infringement of natural justice is not sufficient. Unless prejudice is shown, violation of principles of natural justice ipso facto will not be accepted as a ground to quash a decision. The question whether there is a violation of principles of natural justice depends on the facts of the case. [see Thrippunithura Municipality v. Dr.M.Leela and others - 1997 [2] KLJ 345 and Sudheer v. Susheela - 2009 [4] KLT 29 (F.B.)]. The Additional Director, MoEF has given further time to the Society to file additional information and accordingly the Society has given additional information. No prejudice is shown to be caused, in the circumstances due to limiting of time to file reply (in Ext.P6) till September 17,2010. Hence the plea of violation of natural justice on the above count cannot stand 11. Yet another contention advanced is that Ext.P6, notice W.P(C) Nos.12623 & 22707 of 2010 -: 13 :- does not state the materials on which action is proposed or the nature of proposed action. In Ext.P6, the Additional Director (who issued Ext.P6, notice) has only stated that the matter will be heard by him on 20.9.2010 at 10.30 a.m (at the place mentioned in Ext.P6). Rule 4(3a) of the Rules states that the person, officer or authority to whom any direction under Sec.5 of the Act is stated to be issued shall be served with a copy of the proposed action. Sub-rule (2) states that the direction shall specify the nature of action to be taken. We bear in mind that Ext.P6 notice was issued in the background of Ext.P1, order dated July 14, 2010 and in the light of the order passed by the Supreme court in the Special Leave Petition. We stated that this Court granted stay of operation of Ext.P1, order subject to certain conditions which was challenged by respondent No.1 in the Supreme Court in SLP (C)No.24857 of 2010. The SLP was disposed of by the Supreme Court by order dated August 31, 2010. Relevant portion of order of the Supreme Court is as below: “Having heard learned Advocates on both sides, we hereby direct the Additional Director, Ministry of Environment and Forest, to issue notice to respondent No.1- Society under Rule 4 of the Environment (Protection) Rules, 1986, within one week from today. W.P(C) Nos.12623 & 22707 of 2010 -: 14 :- On receipt of the notice, respondent No.1 - Society will file its reply within two weeks from today, the Additional Director, Ministry of Environment and Forest, will hear and dispose of the matter in accordance with law giving reasons..................................... After the order is passed, it would be open to the parties to move the High Court in the pending Writ Petition. Subject to above, the Special Leave Petition is disposed of.” We must note that it is not as if Ext.P1, order was effaced as is also clear from the fact that even after Exts.P6 and P16 and even as the Writ Petition (in W.P.(C) No.22707 of 2010) is amended after Exts.P6 and P16, it contains a prayer to quash Ext.P1 as well. Contention raised by the Society in the Writ Petition originally filed was that Ext.P1, order was issued without notice to the Society. It is in view of that contention that the Supreme Court has directed the Additional Director to issue notice to the parties concerned under Rule 4 of the Rules, hear them and pass orders in accordance with the law. Ext.P1, order shows the materials on which action is proposed and the nature W.P(C) Nos.12623 & 22707 of 2010 -: 15 :- of action proposed. It is also seen that pursuant to Ext.P6, notice the Society has given Ext.P7, reply and additional information (Ext.P14) as referred to in Ext.R1A (inner page 2) where the Society has taken up all its contentions about the materials referred to and the action directed to be taken in Ext.P1. It is not as if the Society did not have the opportunity to understand nature of the proposed action and was unable to give effective reply. In Ext.P7, reply (see inner page 5) also there is reference to Ext.P1, order. Thus it is not a case where, on account of non-mention of materials or proposed action in Ext.P6, the Society was misled or was not able to give its reply effectively and take proper defence. We find from the materials on record that the Society was given sufficient opportunity and it has availed of that opportunity as well to state its defence. We therefore, are not impressed by the contention that Ext.P6 and P16 are illegal for non- compliance with the principles of natural justice. We reject the said contention. 12. POINT NO.2 It is argued on behalf of the Society that the Additional Director, MoEF had no authority to issue Exts.P1, P6 and P16. Contention in this regard is three pronged: Firstly, authority vested with the Central Government under Sec.5 of the Act to issue directions of the nature contained in Exts.P1 and P16 has W.P(C) Nos.12623 & 22707 of 2010 -: 16 :- been delegated to the State Government, by virtue of power under Section 3(3) of the Act. Hence, only the State Government or the KSCZMA as the case may be could initiate action in the matter; secondly,