Allowed

Yesudasan Stephen v. Union of India

Kerala HC8 Mar 2018WP(C)/7522/2018

Case brief

AI extract

What is this about?

A Writ Petition challenging the authority of the Kerala Pollution Control Board to conduct public hearings for the Coastal Zone Management Plan. The court held that the delegation of limited recording functions was lawful, supported by the Cyber City judgment.

What did the court decide?

The writ petition was disposed of against the petitioners, dismissing their objections to the public hearing process.

Yesudasan Stephen Vs Union of India — Public Procurement and Tenders | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939

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WP(C).No. 7522 of 2018

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PETITIONER(S)

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1 YESUDASAN STEPHEN AGED 44 YEARS, S/O. STEPHEN, MOOPPAKUDI (H) ANCHUTHENGU P.O, THIRUVANANTHAPURAM 695 309

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2 KARTHIK SASI AGED 30 YEARS, S/O. SASI, THEKKEVEETTIL, KUZHITHURA P.O, ALAPPAD, KOLLAM DISTRICT 690 542

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BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS

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SRI.JENNIS STEPHEN

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RESPONDENT(S):

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UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF ENVIRONMENT,FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAVAN, JHOR BHAG, NEW DELHI 110 003

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STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF ENVIRONMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001

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KERALA COASTAL ZONE MANAGEMENT AUTHORITY REPRESENTED BY ITS MEMBER SECRETARY DIRECTORATE OF ENVIRONMENT & CLIMATE CHANGE DEVIKRIPA, PALLIMUKKU, PETTA P.O, THIRUVANANTHAPURAM 695 024

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MEMBER SECRETARY KERALA COASTAL ZONE MANAGEMENT AUTHORITY, DIRECTORATE OF ENVIRONMENT & CLIMATE CHANGE DEVIKRIPA, PALLIMUKKU, PETTAH P.O, THIRUVANANTHAPURAM 695 024

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WP(C).No. 7522 of 2018

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KERALA STATE POLLUTION CONTROL BOARD,REPRESENTED BY ITS MEMBER SECRTARY, PATTOM P.O, THIRUVANANTHAPURAM 695 004

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R3 & 4 BY ADV. SRI.M.P.PRAKASH, SC, KCZMA R2 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY R1 BY SRI. R PRASANTH KUMAR, CGC R5 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7522 of 2018 (S)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	A TRUE COPY OF THE CRZ NOTIFICATION S.O 19(E) DATED 06-01-2011 WITH ALL AMENDMENTS
EXHIBIT P2	A TRUE PHOTOCOPY OF THE DRAFT COASTAL ZONE MANAGEMENT PLAN PREPARED BY THE NATIONAL CENTRE FOR EARTH SCIENCE STUDIES, FOR THIRUVANANTHAPURAM DISTRICT
EXHIBIT P2(A)	A TRUE PHOTOCOPY OF THE DRAFT COASTAL ZONE MANAGEMENT PLAN PREPARED BY THE NATIONAL CENTRE FOR EARTH SCIENCE STUDIES, FOR KOLLAM DISTRICT
EXHIBIT P3	A TRUE PHOTOCOPY OF THE NOTICE OF PUBLIC HEARING ISSUED BY THE 5TH RESPONDENT FOR THIRUVANANTHAPURAM DISTRICT
EXHIBIT P3(A)	A TRUE PHOTOCOPY OF THE NOTICE OF PUBLIC HEARING ISSUED BY THE 5TH RESPONDENT FOR KOLLAM DISTRICT
EXHIBIT P3(B)	A TRUE PHOTOCOPY OF THE NOTICE OF PUBLIC HEARING ISSUED BY THE 5TH RESPONDENT FOR KOTTAYAM DISTRICT
EXHIBIT P4	A PRINT OUT OF THE CRZ MAPS IN THIRUVANANTHAPURAM AND KOLLAM DISTRICTS
EXHIBIT P5	A TRUE PHOTOCOPY OF THE ORDER DATED 22-11-2017 IN O.A NO. 11/2014 AND 424 OF 2016 OF THE NATIONAL GREEN TRIBUNAL
EXHIBIT P6	A TRUE PHOTOCOPY OF THE PETITION FILED BY THE 3RD RESPONDENT BEFORE THE NATIONAL GREEN TRIBUNAL IN O.A 424/2016

//TRUE COPY//

P A TO JUDGE

JJJ

ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J.

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W.P.(C) No. 7522 of 2018 (S)

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Dated: 08^th March, 2018

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J U D G M E N T

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Antony Dominic, C.J.

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Two individuals from Kollam district have filed this writ petition, presumably in public interest, seeking a declaration that the 5^th respondent has no authority or power to conduct public hearing under Ext.P1 Coastal Regulation Zone Notification, 2011 ('CRZ Notification' for short). They also seek to quash Exts.P3, P3(a) and P3(b) notices and issuance of a direction requiring the 3^rd respondent to prepare the draft Coastal Zone Management Plan (CZMP) of Kerala, in accordance with Ext.P1 and other statutory provisions.

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We heard the Counsel for the petitioners, Central Government Counsel appearing for the 1^st

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respondent, State Attorney appearing for the 2^nd respondent, Standing Counsel appearing for respondents 3 and 4 and the learned Counsel appearing for the 5^th respondent.

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The first objection raised to the public hearing pursuant to Exts. P3, P3(a) and P3(b) notices issued by the Pollution Control Board is that Ext.P2, the draft CZMP of Kerala (Thiruvananthapuram District) was prepared by the National Centre for Earth Science Studies for Kerala Coastal Zone Management Authority (KCZMA). It is stated that, finalisation of the said plan by the Ministry of Environment and Forest (MoEF) is in terms of the provisions contained in Annexure I to Exhibit P1, the CRZ Notification. In Annexure I, it is inter alia pointed out that Local Level Coastal Zone Management Maps are for the use of local bodies and other agencies to facilitate implementation of the

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CZMPs and that Cadastral (village) maps in 1:3960 or the nearest scale, shall be used as the base maps. It is also pointed out that these maps are available with revenue authorities and are prepared as per standard norms. Counsel submits that in terms of the provisions in Annexure I to Ext.P1, draft CZMPs prepared shall be given wide publicity and suggestions and objections shall be received in accordance with Environment (Protection) Act, 1986. It is also provided that public hearing on the draft CZMPs shall be held at district level by the concerned CZMA. It is stated that insofar as Ext.P2, the draft CZMP prepared for the KCZMA, is concerned without any authority of law the KCZMA cannot delegate the task of conducting public hearing to the Kerala Pollution Control Board and that the said Board has issued Exts.P3, P3(a) and P3(b) hearing notices.

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Two objections are raised in this context: one is that the cadastral maps in 1:3960 or the nearest scale has not been put in the public domain so far and it is without the prescribed cadastral map that the public hearing is proposed to be proceeded with. The second objection is with regard to the competence or the legality of the Pollution Control Board in conducting the public hearing.

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Insofar as the non availability of the specified cadastral map is concerned, learned Standing Counsel appearing for respondents 3 and 4 submits that such an objection has already been raised in the public hearing held yesterday and that the cadastral map, as prescribed in Ext.P1, is being provided to the Grama Panchayats concerned for facilitating an effective public hearing. We record this submission and according to us, on the aforesaid submission now made before us,

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the grievance with regard to Thiruvananthapuram District stands redressed. Similar exercise will be undertaken in respect of the other districts as well. As regards the competence of the Pollution Control Board in conducting the public hearing is concerned, it is true that by Annexure I to Ext.P1 notification, the draft CZMPs are to be given wide publicity and suggestions and objections shall be received in accordance with the Environment (Protection) Act. It further provides for a public hearing on the draft plan, which shall be held at district level by the concerned CZMAs.

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The further provisions in Annexure I show that, based on the suggestions and objections received, the CZMPs shall be revised and approval of the MoEF shall be obtained. This, therefore, shows that on the basis of the materials collected in the public hearing, the draft CZMPs shall be revised by the KCZMA and it

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is thereafter that authority obtains approval of the MoEF. As regards the justifiability of engaging the Pollution Control Board is concerned, it is pointed out by the Counsel for the 3^rd and 4^th respondents that, having regard to the dearth of manpower for the KCZMA, it has entrusted the task of public hearing to the Kerala State Pollution Control Board, which has been called upon to complete the process in terms of the procedure laid down in the EIA Notification, 2006. According to them, the scope of the work entrusted to the Pollution Control Board is limited, namely to record the objections and suggestions that are made at the public hearing and make available those details to the KCZMA, which will, thereafter complete revision of the draft notification, if necessary and obtain approval of the MoEF.

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Evidently, therefore, the scope of work

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entrusted to the Kerala State Pollution Control Board is a limited one and they are only called upon to collect the materials and make it available to the KCZMA. According to us, when such an arrangement has been made by the KCZMA, considering the dearth of manpower at its disposal and as no adjudicatory power has been delegated to the Pollution Control Board, there is no violation of Ext.P1 notification justifying interference with the process of public hearing which is now conducted by the Pollution Control Board. We find that this view taken by us is fully supported by the principles indicated by the Apex Court in its judgment in Rasid Javed v. State of Utter Pradesh [AIR 2010 SC 2275] where in paragraphs 35 and 36, it has been held thus:

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“35. A close look at Section 102 would make it manifestly clear that modification of the approved scheme may be done by the State Government in the public interest after giving opportunity of being heard in respect of proposed modification to the STU and the persons likely to be affected by the proposed modification. The modification proposed is required to be published in the Official Gazette and in one of the newspapers in the regional languages circulating in the concerned area under Section 102(2). On behalf of the appellants, it was contended that in the proposed modification published in the Official Gazette on April 16, 1999, the authority to hear the objections/ representations was given to Shri Zamirruddin, Special Secretary and Additional Legal Remembrancer and the said Hearing Authority after hearing the objections of the affected persons and the UPSRTC approved the proposed modification and rejected the objections received in this regard and the approval by the Hearing Authority of the proposed modification by his order dated October 11, 1999 is the approval of the State Government. Is the order dated October 11, 1999 of the Hearing Authority approving the proposed modification published in the Official Gazette dated April 16, 1999, an order of the State Government modifying the approved scheme of 1993 under Section 102(1) of the 1988 Act? The answer has to be in the negative because Shri Zamirruddin was given authority to hear the representations received by the State Government to the proposed modification but no authority was given to him to approve the proposed modification or modify the approved scheme. The Notification dated April 16, 1999 does not empower the Hearing Authority to approve or modify the scheme; he has only been

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empowered to hear the objections. That a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted. This settled principle has also been highlighted by this Court in Gullapalli Nageswara Rao, (AIR 1959 SC 308) but based on such principle the limited authority of hearing given to the Hearing Authority by the State Government cannot be treated as enlarged in its scope. A delegatee must confine his activity within four corners of the powers invested in him and if he has acted beyond that, his action cannot have any legal sanction unless ratified by the delegator.

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A distinction must be maintained where the hearing authority is empowered by the State Government to hear objections and approve the proposed modification or modify the approved scheme and a case where the hearing authority is authorized to hear the objections/representations relating to the proposed modification to the approved scheme. In the latter case, the authority delegated to the Hearing Authority is limited and he is not authorized to approve the proposed modification or modify the approved scheme. The present case falls in the latter category and accordingly the order of the Hearing Authority dated October 11,1999 is in excess of the authority given to him and cannot be construed as a final order of approval under Section 102(1) of the 1988 Act. Whether such limited authority of hearing to the Hearing Authority makes any legal sense is an aspect for consideration by the State Government. Suffice, however, to say that it was not open for the Hearing Authority to approve the proposed modification or modify the proposed scheme.”

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We therefore dispose of this writ petition

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accordingly.

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Sd/ANTONY DOMINIC, CHIEF JUSTICE.

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Sd/DAMA SESHADRI NAIDU, JUDGE.