ANSARI KANNOTH Vs. STATE OF KERALA

JUDGEMENT

(1.) Parties hereto and the exhibits are referred as they are arrayed and exhibited in WP (C) No. 22707 of 2010.

(2.) Pappinissery Eco Tourism Society (for short, 'the Society'), petitioner in WP (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 WP (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 WP (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 WP (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 WP (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 R.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 R.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 R.4 of the Rules. Nor does Ext. P6 contain the materials based on which the Society was required to give its reply. Ext. P16, order is not in accordance with R.4 of the Rules. The Central Government has delegated its power under S.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 S.5 of the Act. The Central Government therefore, has no authority to interfere in the matter. At any rate under S.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 Art.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 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. Ext. 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.