Case: Association For Enviornment Protection Vs. State Of Kerala

11. The appellant is a registered body engaged in the protection of environment in the State of Kerala. It has undertaken scientific studies of environment and ecology, planted trees in public places and published magazines on the subjects of environment and ecology. In 2005, Aluva Municipality reclaimed a part of Periyar river within its jurisdiction and the District Tourism Promotion Council, Ernakulam decided to construct a restaurant on the reclaimed land by citing convenience of the public coming on Sivarathri festival as the cause. The proposal submitted by the District Tourism Promotion Council was forwarded to the State Government by the Director, Department of Tourism by including the same in the project for renovation and beautification of Manalpuram Park. Vide order dated 20.5.2005, the State Government accorded administrative sanction for implementation of the project at an estimated cost of Rs.55,72,432/-.12. When the District Promotion Council started construction of the building on the reclaimed land, the appellant filed Writ Petition (C) No.436/2006 and prayed that the respondents be restrained from continuing with the construction of building on the banks of river Periyar and to remove the construction already made. These prayers were founded on the followingPeriyar river is a holy river called, on the banks of which famous Sivarathri festival is conducted.b) The river provides water to lakhs of people residing within the jurisdiction of 44 local bodies on its either side.c) In 1989, a study was conducted by an expert body and Periyar Action Plan was submitted to the Government for protecting the river but the latter has not taken any action.d) In December, 2005, Aluva Municipality reclaimed the land which formed part of the river and in the guise of promotion of tourism, efforts are being made to construct a hotel.e) The construction of hotel will adversely affect the flow of water as well as the river bed.f) The construction of the building will adversely affect Marthanda Varma Bridge.g) The respondents have undertaken construction without conducting any environmental impact assessment and in violation of the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.h) The construction of hotel building is ultra vires the provisions of notification dated 13.1.1978 issued by the State Government, which mandates assessment of environmental impact as a condition precedent for execution of any project costing more than Rs.10,00,000/-.In the written statement filed on behalf of the respondents, the following averments wereDistrict Tourism Promotion Council has undertaken construction of a restaurant and not a hotel as part of the project involving redevelopment and beautification of Manalpuram Park.(ii) The State Government has accorded sanction vide G.O. dated 20.5.2005 for construction of a restaurant.(iii) The restaurant is meant to serve large number of people who come during Sivarathri celebrations.(iv) The construction of restaurant will neither obstruct free flow of water in the river nor cause damage to the ecology of the area.(v) There will be no diversion of water and the strength of the pillars of Marthanda Varma Bridge will not be affected.The Division Bench of the High Court took cognizance of the sanction accorded by the State Government vide order dated 20.5.2005 for renovation and beautification of Manalpuram Park and dismissed the writ petition by simply observing that only a restaurant is being constructed and not a hotel, as claimed by the appellant. The cryptic reasons recorded by the High Court for dismissing the writ petition are extractedthe facts as gathered above, it transpires that no hotel at all is being constructed in the river belt. The petitioner does not appear to have ascertained the correct facts before filing the present petition. Main allegation by the petitioner that a hotel is being constructed on the banks of Periyar river is found to be incorrect. There is no merit in this writ petition. It is hereby

Reasoning:
G.O. dated 13.1.1978 is illustrative of the Statecommitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978.