MANOHARAN T B Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) These two Writ Appeals are filed against the common judgment in W.P.(C) No. 29611 of 2007. The writ petitioners approached the learned Single Judge contending, their livelihood is taken away by declaring the seashore in Puthuvypu as Special Economic Zone, resulting in prohibition to enter the said area. According to the writ petitioners, they are eking out their livelihood right from 1976 onwards by mining shells from the Arabian seashore in and around Puthuvypu. After declaring the said area as a Special Economic Zone, the impending work of Liquefied Natural Gas (LNG) has started for the purpose of construction of a berth. With this construction of berth for LNG no space would be available for the petitioners to place their mined seashells on the shore which results in total deprivation of their livelihood. The action of the respondents putting up berth and plants on the shores of Arabian Sea would come in the way of livelihood of the petitioners, therefore, it is unconstitutional, unjust and is against the principles of public law, is the contention of the writ petitioners. This results in infringement of fundamental rights guaranteed under Article 21 of the Constitution of India. By act of nature, Kochi Estuary had been created more than 600 years ago which resulted in accumulation of seashells on the right side of Kochi Estuary and the work of mining seashells had been carried on from time immemorial by ancestors of the writ petitioners and later on by the writ petitioners. On account of accumulation of lime shells, Cochin Port Trust was continuously giving no objection certificates to the society of the writ petitioners for mining seashells. This bountiful gift of nature is obstructed on account of construction of berth, compound wall and oil plants at the instance of the Cochin Port Trust, Kochi Refineries Ltd. and Petronet LNG Ltd. in Puthuvypu after declaring the said area as a prohibited area being a Special Economic Zone. The respondents proceeded with their work of construction of berth etc. totally ignoring the plight of the writ petitioners and their families unmindful of their action depriving their livelihood. If their only means of livelihood is taken away, it would be impossible for them to make both ends meet and they will be threatened with utter starvation, is the contention raised. With the above averments, they have sought the following reliefs:

(2.) The second respondent, Additional Secretary to Government, Industries Department, filed a counter-affidavit in response to the averments indicated in the writ petition. After referring to the process how Cochin Port Trust allotted land to the Petronet LNG Ltd. in resurvey No. 347 at Puthuvypu area, she contends that the approach road to the project site has to be constructed by the Cochin Port Trust. She further contends that as the project involves conversion of Liquefied Natural Gas to Regasified Liquefied Natural Gas to be sold to various companies, who, in turn, transport the said product through GAIL pipeline to various customers like power producers, fertilizer manufacturers and other industrial units, the area deserves to be safeguarded, hence it necessitated construction of a boundary wall and declaration of the area as a Special Economic Zone. According to respondents, the major investment would enhance development of infrastructure in and around Kochi which would facilitate promotion of new gas-based-industries in the State of Kerala. This again would result in creation of employment. The terminal is proposed to be in operation by 2012.

(3.) According to the respondents, the Society, to which all the writ petitioners belonged to, was permitted to collect seashells from the sea coast of Elamkunnapuzha Village for a period of II months commencing from 1-8-2006 to 30-6-2007. The said permission is also subject to terms and conditions. The permission is liable to be terminated. It is clearly mentioned in the said permission that the area falls under port limits and the area concerned is exclusively reserved for port related activities and the permission is only a provisional one. Permission to collect seashells was valid upto 30-6-2007, therefore, the writ petitioners cannot claim unfettered right to collect seashells from the port area. Having agreed to the terms and conditions at Exhibit P-5, there is no justification in the contention of the writ petitioners raised now. Construction of compound wall is almost at the verge of completion. The contention that once the construction of berth commences, there will not be any space for the appellants to store their mined seashells is denied, as the said mining of seashells was subject to permission. According to them, there will be enough and sufficient space available in the beach to store such seashells. But, however, there has to be restricted entry into the berth and other areas of Petronet LNG Ltd. for reasons of security to avoid any untoward incident. The terminal deals with products that require handling with great care and caution. The contention that only in a small stretch of area the seashells are available on the shore of Puthuvypu is also challenged. According to them, the Special Economic Zone Act of 2005 does not envisage any provision for rehabilitation of displaced persons. So far as restriction to enter the port area, it is not new as always such restrictions were imposed by Statute ever since the area was declared as a port area under the Indian Ports Act, 1908. Collection of seashells within the port area was subject to various restrictions. Restrictive right cannot be termed as infringement of fundamental right or deprivation of livelihood, is the contention. The claim for compensation is without any basis and similarly claim for rehabilitation is also untenable. With these averments, they had sought for dismissal of the Writ Petition.