India: Lawrence vs. The State Of Kerala And Ors. - Civil Appeal No. 2535 Of 2020

Background and facts of the case

The growing population of our country is leading to an increase in the needs of people. Thus, in order to satisfy their needs, people are exploiting the natural resources gifted to them, thereby creating havoc and destroying the environment at a rapid rate. In order to curb this exploitation a plethora of legislations have been brought in under the broad spectrum of Environmental Law.

The background of the case is that a petition was filed by an environmentalist namely Thomas Lawrence by way of Public Interest Litigation, wherein he had challenged the "conversion of land" which was being utilised for the purpose of "development of Technopark Phase -III Campus, Attipra Village, Thiruvananthapuram Corporation, Taluk & District Thiruvananthapuram, Kerala" and thereby alleged that the development project had been leading to destruction of Veli- Akkulam wetland.

Through a Swiss Challenge the "Government of Kerala" and "M/s Technopark" had awarded "19.73 acres of Wetland in Phase- III, Technopark" back in 2014. Tarus Investment Holdings was the only bidder. In consonance with this, government orders were issued and lands were leased out to subsidiaries of Tarus Investment, Dragonstone being one of its subsidiaries and other named Winterfell Realty Pvt. Ltd... Technopark and Tarus entered into framework agreement pursuant to this. The Revenue Department of State of Kerala by G.O 40/2018 dt. 03.02.2018 permitted Technopark to convert 861.2 Acre of land for "public purpose" by way of section 10 of Kerala Conservation of Paddy Land and Wetland Act, 2008¹.

In the month of March, 2018, M/s Technopark leased to both the subsidiaries 10 and 9.73 Acres of land. Both the subsidiaries were working in tandem for the expansion of phase 3 Technopark. M/S Technopark is a company which is owned wholly by the "Government of Kerala." The company had leased the land to Dragonstone Realty Pvt. Ltd., the project proponent. The leased land is the one on which project expansion was to take place. A total area of 3.93 ha/ 9.73 Acres was proposed for expansion of the project area being "Village Attipra, Taluk & district Thiruvananthapuram, Kerala." The expansion which had been proposed was unfortunately near the "Veli-Akkulam Wetlands system." The acts of Dragonstone Realty Pvt. Ltd. led to reclamation as well as mass destruction of "10 -acre pond" as well as "a wetland system" accompanying it.

Dragonstone had proposed for Environment Clerance and it was taken into consideration for the first time in July 2018. Subsequently they applied for prior Environment Clerance on 1.10.2018 for project expansion at Phase- 3 Technopark.

The present appeal in this case of Thomas Lawrence vs. State of Kerala was addressed by PIL-Petitioner after being aggrieved by the order of National Green Tribunal dated 06.11.2019 wherein the tribunal was of the opinion that the present matter did not require a separate order keeping in view the order which was given in another case by this court on the date 14.10.2019 in O.A. No. 71 of 2019. And further that the same can be dealt with at the time of Environment Impact Assessment which is related to another matter. The execution application that was filed by appellant was dismissed and therefore he appealed.

Legal issues identified by the Court

• Whether the original application filed by the appellant should be rendered infructuous owing to the proceedings which are already initiated?

Legal reasoning and findings of the Court

The court addressed the primary issue pertaining to the relevance of "execution application" which was followed by the order of the tribunal dated 19.12.2018. The Hon'ble Court observed that where a subsequent order had been filed by the collector on 30.04.2019, the execution application would be rendered obsolete/ infructuous in those circumstances. The court further allowed the petitioner to challenge the order of collector within 8 weeks assuring him that his petition would not be dismissed on the grounds of delay. The ratio of Court in this case focused on infructuous nature of execution application because of fact that collector had already passed an order.

The PIL-petitioner challenged the decision of National Green Tribunal, contending that the order of the tribunal referred to a different case altogether which concerned environment clearance for "Dragonstone Realty Pvt. Ltd., the area being 9.73 acres of land. The order of that tribunal dt. 14.10.2019 was that The SEIAA Kerala and the MoEF& CC were required to take joint exercise to verify whether the allegation that Dragonstone had mentioned a lower built -up area to obtain EC within Category-B rather than Category A were true or not². While on the other hand the current matter/ Execution application pertained to violations and mass destruction of Veli- Akkulam Wetland, area being 19.73 acres. NGT had passed an order in this context on 19.12.2018, directing the District Collector of Trivandrum to look into the mass destruction of Veli-Akkulam Wetlands and that 10- acre pond which was also located inside that Technopark and file a report accordingly.

Another aspect around which this case revolves is whether the disputed land over which Phase- 3 construction of Technopark was to take place was a wetland or a paddy land. And accordingly, the construction be illegal in view of the relevant provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008. While the petitioner argues it to be a wetland and therefore considers the construction illegal, the respondents contend It to be a paddy land and therefore claimed protection of the Kerala Conservation of Paddy Land and Wetland Act and saying the construction to be legal. Section 10³ of the Act provides power to government to "grant exemption" if the paddy land is to be used for "public purpose" under section 2 (xiv)⁴ of the Act. On the other hand, by virtue of section 11⁵ of the same Act, reclamation of wetland is completely prohibited. This is the only reason why respondents want their land to fall within the ambit of paddy and not wetland. It is to be noted that when land was awarded to the project proponent by way of Swiss Challenge, it was given with the tag of "17.93 Acres of Wetland." In light of this fact, it raises serious concerns as to how back in 2003 could the land be said to be falling under the category of "paddy land/ converted paddy land or dry land." Even as Respondent Number 7 and 9 go on to produce a response provided for the RTI applications wherein a list of wetlands was sought, the same demands to be assessed for the sake of transparency.

Further, it is contended by the respondents that the "impugned site" is at a considerable distance from the Akkulam Lake and is not a part/component of "Veli Akkulam Wetland System." The fact that it is such a big project and stretches in a huge area, a distance of 3 Km from the project would still be harmful for the lake/wetland. A lot of dirt, raw materials, harmful chemicals, sand would still flow and impact the wetland. It is well known that if a wetland destruction takes place, it has a lot of potential ecological impact. These ecosystems are essential for flood control, biodiversity and maintaining quality of water. Additionally, it would lead to a great economic and social impact if the project continues this way.

In addition to the above concerns, another concern which arises is while the Tibunal in its order linked the present case to the Environment Impact Assessment of another project, did it actually address the specific issues or not because had that been done a lot of ambiguity would have been removed.

Comments and Assessment

It was also contended that there was inaction on the part of authority as they failed to take relevant actions as per the guidelines and directions which the National Green Tribunal had issued on 19.12.2018 and therefore the order of the tribunal be set aside and matter be remanded for "de novo hearing." This contention in author's opinion is well founded as according to section 10 of Kerala Conservation of Paddy and Wetland (Amendment) Ordinance 2017 and act of 2008, the government has power to "grant exemption" if the paddy land is to be used for "public purpose" under section 2 (xiv) of the Act. But first of all, this land is a Wetland as opposed to a paddy land. Secondly, by placing reliance on M.K. Balakrishnan vs. Union of India⁶ and "Rule 4 of the Wetlands (Conservation and Management) Rules, 2010⁷" which strictly prohibits reclamation of wetland, setting up or expansion of industries or even any activity which might adversely impact the "ecosystem of wetland." Under such circumstances, the order of collector was rightly said to be not "in accordance with law" and the action of the state, illegal.

The fact that the court allowed for challenging district collector's order, the petitioner can go on to enquire whether the project proponent had maintained necessary safety measures which they were directed to maintain for conservation of water while they were granted sanction and ask the DC for the report of the same. He can proceed to file a fresh case wherein he can contend the classification of wetland and the exemption granted to the respondents by the government. The courts will have to interfere with the aspect of status of land to determine exactly whether it is a wetland or a paddy land, and if it is a wetland whether it was a part of the disputed land because the evidences produced by both the counsels seem to have created a confusion about the exact nature of the land. While determining so the courts also need to verify the legality of the project on the basis of rules and regulations with respect to environment.

While it was also pointed that the petitioner had "missed the bus and had knocked the doors of NGT" post huge construction work had taken place and after having gotten all permissions, it must not be forgotten that one of Environment clearances were obtained after concealing the built -up area and showing only half of it. It must not be forgotten that this construction will cause large scale destruction of wetlands in that area. Environment will be harmed at the cost of economic benefits that this Technopark will bring in future.

Petitioner's approach to challenge the expansion project can be said to be in the wrong direction but one thing is sure that his concern was for the protection of wetlands in that area because wetlands are "the most productive ecosystems in the world." Environmental protection plays a crucial role when it comes to development projects and this case is a perfect example for this statement. It is therefore, essential to conduct a thorough "legal and environmental assessment" in order to ensure "sustainable development" and prevent the sensitive ecosystems, for instance wetlands from harm/ destruction keeping in mind the "precautionary principle" as well. "The Precautionary Principle"⁸ has been accepted as a part of the law of the land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment.⁹ The Precautionary Principle states that action should be taken even where there is not conclusive evidence to prove a causal relationship between the actions and their effects. If there is (1) a threat, which is (2) uncertain then (3) some kind of action (4) is mandatory.¹⁰ The principle has been widely recognized and it is now accepted that in order to protect unique areas of the natural environment in the interests of sustainability and the intrinsic values of nature, governments need to invoke the precautionary principle.

Footnotes

1. The Kerala Conservation of Paddy Land and Wetland Act 2008, s 10.

2. Sanjeev SJ, President, Environmental Protection and Research Council vs. Sate of Kerala (National Green Tribunal, Principal Bench, New Delhi).

3. The Kerala Conservation of Paddy Land and Wetland Act 2008, s 10.

4. The Kerala Conservation of Paddy Land and Wetland Act 2008, s 2 (xiv).

5. The Kerala Conservation of Paddy Land and Wetland Act 2008, s 11.

6. M.K. Balakrishnan vs. Union of India [2017] 7 SCC 810.

7. The Wetland (Conservation and Management) Rules 2010, Rule 4.

8. Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647

9. M.C. Mehta v Union of India (1997) 3 SCC 715

10. Janet Cotter H, Paul Johnston and David Santillo, 'The Precautionary Principle and Forest Exploitation: Implications for the Implementation of the FSC Principle 9' [2000] Greenpeace Research Laboratories Technical Note 08/00 (https://www.researchgate.net/publication/241474834_The_Precautionary_Principle_and_Forest_Exploitation_Implications_for_the_Implementation_of_the_FSC_Principle_9) accessed 14 November 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.