Disposed

Rev. Dr.Fr.v.P.Joseph Valiyaveettil v. Union of India

Kerala HC5 Oct 2021WP(C)/5835/2018

Case brief

AI extract

What is this about?

Coastal erosion and fishermen’s hardships prompted directions for permanent remedial measures. The court required serious and prompt examination of Kerala’s coastal management report before Central approval, and directed Central and State authorities to coordinate a permanent sea-erosion solution, with decisions and action conforming to Article 21.

What did the court decide?

Chief Secretary directed to examine the coastal management report promptly; Central and State authorities directed to coordinate permanent sea-erosion prevention in conformity with Article 21.

Rev. Dr.Fr.v.P.Joseph Valiyaveettil Vs Union of India — Environment and Pollution | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 WP(C) NO. 5835 OF 2018

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PETITIONER/S:

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REV. DR.FR.V.P.JOSEPH VALIYAVEETTIL AGED 57 YEARS DIRECTOR, KREUPASANAM COASTAL MISSION,KALAVOOR POST, ALAPPUZHA DISTRICT. BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO ENVIRONMENT& FOREST, PARYAVARAN BHAVAN, NEW DELHI. 110001

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2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001

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3 COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, WILLINGTON ISLAND,COCHIN, PIN.682003

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4 SECRETARY TO THE MINISTRY OF SHIPPING GOVERNMENT OF INDIA, TRANSPORT BHAVAN,SANSAD MARG, NEW DELHI. 110001

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5 SECRETARY TO THE MINISTRY OF AGRICULTURE DEPARTMENT OF FISHERIES, GOVERNMENT OF INDIA,KRISHI BHAVAN, DR. RAJENDRA PRASAD ROAD,NEW DELHI. 110001

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6 THE DISTRICT COLLECTOR ERNAKULAM, COLLECTORATE, ERNAKULAM. 682011.

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7 THE DISTRICT COLLECTOR ALAPPUZHA, COLLECTORATE, ALAPPUZHA-688001

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8 THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM.691001

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9 THE DISTRICT COLLECTOR

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THIRUVANANTHAPURAM, COLLECTORATE, THIRUVANANTHAPURAM. 695001

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ADDL.10 JACKSON POLLAYIL, AGED 46 YEARS, S/O THOMAS, POLLAYIL HOUSE, ARTHUNKAL P.O., CHERTHALA 688 530. (IMPLEADED AS ADDITIONAL R10 AS PER ORDER DATED 08.10.2020 IN I. A. 1 OF 2020 IN WPC 5835 OF 2018

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BY ADVS. SRI. K. ANAND (SR.) SRI.DINESH R.SHENOY, CGC DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC SMT.LATHA ANAND, SC, COCHIN PORT TRUST

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OTHER PRESENT:

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SRI.N.MANOJKUMAR,STATE ATTORNEY R2, R6 TO R9 SRI.K.R.RANJITH,GOVERNMENT PLEADER SRI SAJI ISSAC FOR ADDL. R10

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

S. Manikumar, C. J.

Petitioner has sought for the following reliefs:-

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“(a) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to take immediate steps for depositing the dredged sand and soil in future in the coast of concerned place itself instead of using it for creation/development of small islands;

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(b) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to take immediate steps for construction of sea walls, brake water, groins and the rehabilitation of people who lost their homes in the sea erosion;

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(c) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to implement multipurpose development projects for the uplifting of the millions of people in the southern coastal belt from Kochi to Alappuzha, to sanction compensation for the huge financial crisis, social, educational and cultural loss they have to face as

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the effect of Cochin port development project and afford them education and job reservation;

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(d) issue a writ of mandamus or any other appropriate writ, order or direction commanding the second respondent to take necessary steps through its revenue officers, including the respondents six to nine for resumption of the encroached beachside properties, puramboke properties, public ways and roads by the resort and hotel owners and reconstruct and preserve them for the public use;

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(e) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent governments to form an 'Emergency Coastal Rescue Force Operation Squad' inducting persons from the fishermen community also who are expert and educated swimmers and well acquainted with the sea;

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(f) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to include expert, educated fishermen who are familiar with the sea, to be in the posts of central and state bodies like Coast-guard, revenue disaster management, weather-forecast centre, Marine enforcement, coastal-police, life guard etc.;

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(g) issue a writ of mandamus or any other appropriate writ, order or direction appointing a commission to study and report regarding the delay and latches, if any, occurred on the part of relief operation teams during the recently occurred okhi disaster;

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(h) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to invite a meeting of those working in the coastal area to decide the priority list of the coastal development projects with further directions to formulate 'a fish scarcity package', intensify the action of debt relief commission, increase the amount and also extend its validity period;

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(i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the second respondent to include all the fishermen who have got membership in the welfare fund board and in grama sangham in the B.P.L list and to afford them all the benefits thereof;

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(j) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent governments for the completion of Arthungal, Chellanam and Chethy harbours and the river mouths, Kannamaly, Puthenthodu, Andhakaranazhy, Thumpoly, Muthlappozhi, Kaattoor, Vazhakootam pozhi, Cheriya pozhi, Odapozhy, Arappackal puzhi, Kumeen puzhi (Punnapra) and all like to be developed as natural harbours for facilitating the fishermen to anchor their country boats and nets safely”

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According to the petitioner, instant writ petition is filed to

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bring the pathetic situation of the fishermen community living in the coastal area of the State of Kerala to the notice of this Court.

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The reasons for their sympathetic condition as pointed out by

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the petitioner are:-

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(i) the alarming scale of coastal erosion and the adverse impacts thereof.

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(ii) the lukewarm attitude on the part of the authorities concerned on various issues faced by the community.

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(iii) the intrusion of the modern resorts and hotels into the seashore and coast.

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(iv) the lack of proper and adequate assistance with the help of modern technology regarding the disasters and rescue operations.

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(v) the impractical implementation of CRZ regulations in the case

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of the local population residing in the coastal area for generations.

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(vi) undue delay in reaching the benefits under various schemes to the fishermen community and also the recent trend of selective distribution of such benefits.

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Seeking effective and urgent interference of this Court to the above issues, petitioner has raised the following contentions:-

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The erosion of coastal area is the main problem being faced

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by the Kerala Coast for last so many decades. It has several adverse impacts on the geographical arena, as well as on the lives of the population residing there, especially those who are engaged in fishing. Several studies have been made all over the world regarding the issue. Though the contributory causes have slight variations from places to places, by and large, the main reasons are found to be similar.

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The studies generally show that the human activities along the coast (land reclamation, port development, shrimp farming), within river catchments and watersheds (river damming and diversion) and offshore dredging, sand mining etc. in combination with the natural forces, often exacerbate coastal erosion in many places and jeopardize opportunities for coasts to fulfill their socio-economic and ecological roles in the long term, at a reasonable societal cost. This erosion is generally attributable to many factors such as ports and dredging, river damming and diversion, which lead to less sediment supply to the coast, and the clearing of mangrove forests which makes coastal areas more susceptible to the hazard. Building houses via land reclamation

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or within sand dune areas and port/harbour development has a long-

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term impact on shoreline change.

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It is learnt that the Cochin Harbour was commissioned in December 1935 after dredging 450 feet wide and 40 feet deep. Within the span of 5 years after this dredging, there was 50 km sea erosion along the southern coast. Reports of Kerala Engineering Research Institute, Peechi from 1968-1981 had estimated an annual average of 5 meter sea erosion based on 120 years of sea erosion at Kollam from 1850-1970.

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The sea showed its utmost fury during the period from 19361965. By 1965, dams were constructed in many rivers, which prevented the floods in monsoon times, and lot of measures were taken to prevent sea erosion too. Reports of Kerala Engineering Research Institute, Peechi, from 1968 1981 says 80 meters of land was lost in sea erosion from Kannamaly up to Chellanam within a period of 10 years. The petitioner has first hand information of the sea uprooting 25-30 rows (200-250 Meter) of coconut trees along the coast. This led to great financial crisis in even many rich families.

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Worse is the case of so many poor persons who lost their homes and everything.

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From the month of May to August, for 4 months, the tidal flow or the current is towards the southern side. [Reports of Kerala Engineering Research Institute Peechi from 1968-1981 (KERI)]. The whirl-pool created by the flood waters would be pushed towards the south due to this force. Hence the southern coast is more affected by sea erosion. When the river mouth was deepened from 12 feet to 40 feet, the whirl-pool widened its destruction to 50 Kms. When the length was prolonged to 3 miles, the destruction spread up to 100 Kms. As a result of that, half a kilometer of land was eaten up by the sea. Double its area became barren, because of the trees being destroyed by the salt water. The fertile paddy fields also became barren. Even drinking water too became a scarce commodity; the coastal community became a marginalized society of poor people.

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The Port Trust, as well as the Government of India, has a legal and moral obligation as per the 'Harbour-treaty', to find a proper solution to this grave issue. It is understood that the 1920 HarbourTreaty was signed by the then Madras Governor, representing the

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Government of India, the Maharaja of Kochi, the Divan representing Travancore, and Mr. Robert C. Bristow representing the port, and that in this treaty, an assurance was given to the Maharaja of Kochi, that in case of any issues arising due to the Cochin Harbour, the interests of the subjects of the King shall be protected for, forever. Dr. Babu Paul, former Port Trust Chairman, has reiterated this fact in his book, 'A Queens Story'. It is learnt that this treaty, fully and completely protected all present and future interest of his subject.

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Both the Central and State Governments are not much concerned about the well-being and security of the fishermen community. Their sympathies and attention come only on the happening of a disaster, as we used to witness. Proper schemes are not planned nor implemented to safeguard the life and employment of the fishermen. Traditional fishing now faces several adverse issues. The modern highly mechanised fishing equipments, coming even from neighbouring countries, do most of the catchment, and even after spending several days in the outer sea, the traditional fishermen are facing the situation of coming back to the shore, with almost empty boats. Hitherto, these highly mechanised fishing was done or allowed

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only in the deeper area, and the traditional fishermen used to get the catchment from the upper and middle level of the sea. It is highly urgent to arrest this alarming situation and to afford the job security to the traditional fishermen.

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Recently, when hurricane Ockhi hit our coast, the authorities asked the fishermen to return to the safe shelters. The country boats anchored in the sea had to be brought a long distance to the harbour; the number of country boats was 100 times more than the holding capacity of those harbours: Due to the limited space there, there was great turmoil and fights among them. The locals in their arrogance, displayed their supremacy, by untying the country boats of the expatriates, and let their country boats afloat in the sea; it was all due to the non availability of space in the harbours. Thousands of small country boats, disco boats, inboard boats, and plywood boats are there. They are so innumerable in number and they could not find a halting space. To find a solution to this grave issue, direction must be given by the Government to protect the sea mouths, that has been blocked for decades, due to the sand and silt being accumulated in their openings. So a direction may be issued to the respondents for the

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completion of Arthungal and Chethy harbours, and the river mouths, Kannamaly, Puthenthodu, Andhakaranazhy, Thumpoly, Muthlappozhi, Kaattoor, Vazhakootam pozhi, Cheriya pozhi, Odapozhy, Arappackal puzhi, Kumeen puzhi (Punnapra) and all like this to be developed as natural harbours, so that the fishermen can repair their country boats and nets safely there.

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Supporting the prayers sought for, petitioner has raised the following grounds:-

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A. It is learnt that the 'Harbour treaty' signed by the then Madras Governor representing the Government of India, the Maharaja of Kochi, the Divan representing Travancore, and Mr. Robert C. Bristow representing the Cochin Port, gave an assurance to the Maharaja of Kochi, that in case of any issues arising out of this harbour, the interests of the subjects of this king, shall be protected for, forever. Now, they face umpteen issues because of the port, and the respondents are bound to take care of the population obliging the treaty.

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B. When land is acquired from a person for public purpose, he is given adequate compensation. Though a direct and immediate acquisition was not effected from the local population of the coastal area, the result of the commissioning of the Cochin Port is more alarming. Their land have been lost gradually, their employment facilities were reduced drastically, and they are under the constant threat of loss of life and amenities. So adequate compensation has to be provided for their loss and sufferings. The respondents have a duty to oblige the same. Provision of some reservation in the jobs in the projects, commissioned at the cost of their life, including Cochin Port, has to be created, as solace to the poor fishermen folk.

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C. For avoiding or rather reducing further coastal erosion, necessary protective measures are to be implemented on a war-footing. However, the respondents are keeping a lukewarm attitude towards the same.

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D. During disasters due to hurricane, tsunami etc., rescue operations

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are done in the deep sea by persons who are not at all connected with fishing, and who have no knowledge of its intricacies. This

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leads to lack of proper and effective rescue operations. Hence, inclusion of persons from the fishermen community in these squads, on a permanent basis, is necessary.

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E. Distribution of the benefits available under various schemes for the fishermen community are not done in a need based proportion. So a proper system is required for the distribution of the benefits, and all the members of the community are to be issued with BPL Cards.

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F. The beach-side resorts and hotels have made the living and employment of the fishermen folk more miserable. Many of these resorts and hotels had encroached into the beaches, and reduced it into their private possession, and thereby denied the access of the fishermen to the sea, to and fro. The illegal encroachments of all sorts, from all corners to the sea side, are to be evicted, and the beaches should be kept as common, forever. A proper survey in this regard along the Kerala coast is highly necessary.

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G. Sufficient facilities for the fishermen to board their boats to the shore by developing small harbours are highly necessary. Despite

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umpteen demands in this regard from the fishermen community, sufficient steps have not been taken by the respondents in this regard. Though some allocation has been made in the last budget of the 2^nd respondent State for Chellanam Harbour, the proper utilisation of the fund is still a question mark, as the details of the proposals are still to be made clear. Allocation of the fund for the remaining small harbours is also necessary.

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H. Implementation of CRZ norms would be unjustifiable in the case of the original local population of the coastal belt. The authorities concerned are not taking adequate steps to prevent soil erosion, and thereby, the local population in the coastal belt are losing their precious property, and coming closer to the sea every year. Added to that, they are now even prevented from making any construction in their available very limited space.

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Ministry of Environment, Forest and Climate Change, the 1^st respondent, has filed an affidavit.

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Relevant portions of the affidavit are reproduced:-

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“2. That in exercise of the powers conferred by sub-

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section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of subrule (3) of rule 5 of the Environment (Protection) Rules, 1986, Ministry of Environment and Forest had notified the Coastal Regulation Zone Notification, 1991 on 19^th February, 1991, which, inter-alia, provided classification of Coastal Regulation Zone (hereinafter referred to as CRZ) areas and norms for regulating developmental activities therein. This notification was subsequently amended from time to time.

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3.That it is submitted that in supersession of the CRZ Notification, 1991, the Coastal Regulation Zone Notification, 2011 was notified on 6^th January, 2011 for regulation of developmental activities along the coastal stretches and to ensure the livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches.

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That the CRZ Notification, 2011 declares the following areas as CRZ and imposes the certain restrictions on the setting up and expansion of industries, operations or processes and the like in the CRZ, -

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(i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500mts on the landward side along the sea front.

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(ii) CRZ shall also apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water

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bodies that are connected to the sea. Explanation. - For the purposes of this sub paragraph the expression tidal influenced water bodies mean the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like.

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(iii) the land area falling between the hazard line and 500mts from HTL on the landward side, in case of seafront and between the hazard line and 100mts line in case of tidal influenced water body.

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(iv) land area between HTL and Low Tide Line (hereinafter referred to as the LTL) which will be termed as the intertidal zone.

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(v) the water and the bed area between the LTL to the territorial water limit (12 Nm) in case of sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of the bank, of tidal influenced water bodies

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That the CRZ Notification, 2011 provides for regulation of permissible activities in CRZ area and, inter alia, states that the following activities shall be regulated except those prohibited in the notification, -

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(i) (a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities;

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(b) for those projects which are listed under this notification and also attract EIA notification, 2006, for

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such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State or Union territory Coastal Zone Management Authority (hereinafter referred to as the CZMA).

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(d) Construction involving more than 20,000sq mts built up area in CRZ-II shall be considered for approval in accordance with EIA notification, 2006 and in case of projects less than 20,000sq mts built-up area shall be approved by the concerned State or Union territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZMA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority.

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(ii) the following activities shall require clearance from MoEF after being recommended by the concerned CZMA, namely: -

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(a) those activities listed under category 'A' in the EIA notification 2006 and permissible under the said notification.

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(b) construction activities relating to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as,

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slipways, jetties, wharves, quays; except for classified operational component of defence projects. Residential buildings, office buildings, hospital complexes, workshops of strategic and defence projects in terms of EIA notification, 2006.

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That it is further submitted that Paragraph 8 of the CRZ Notification, 2011 provides for the norms for regulation of activities permissible under this notification and relevant provisions of the same are extracted below:

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"8. Norms for regulation of activities permissible

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under this notification, -

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(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-

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1. CRZ-I, -

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(i) no new construction shall be permitted in CRZ-I except for the projects listed therein.

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II. CRZ-II, -

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(i) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorized structures;

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(ii) buildings permitted on the landward side of the existing and proposed roads or existing authorised structures shall be subject to the existing local town and country planning regulations as modified from

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time to time, except the Floor Space Index or Floor Area Ratio, which shall be as per 1991 level: Provided that no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road:

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Provided further that the construction in CRZ-II area of Goa, Kerala and Mumbai shall be governed by the provisions of Clause V of paragraph 8.

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(iii) reconstruction of authorized building to be permitted subject with the existing Floor Space Index or Floor Area Ratio Norms and without change in present use;

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III. CRZ-III, -

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A. Area upto 200mts from HTL on the landward side in case of seafront and 100mts along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as "No Development Zone (NDZ)"

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(i) the NDZ shall not be applicable in such area falling within any notified port limits;

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(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities;

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That for the purpose of implementation and enforcement of the provisions the CRZ Notification, 2011 and compliance with the conditions stipulated there under, the powers either original or delegated are available under the Environment (Protection) Act, 1986 with the State Government and the State Coastal Zone Management Authority (SCZMAs). The composition, tenure and mandate of State/UT CZMAs, have been notified from time to time by the Ministry.”

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Chief Engineer, Cochin Port Trust, the 3^rd respondent, has filed a counter affidavit.

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Relevant portions of the same are extracted:-

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“4. It is submitted that coastal erosion is the wearing away of material from a coastal profile including the removal of beach, sand dunes, or sediment by wave action, tidal currents, wave currents, drainage or high winds. Waves, generated by storms, wind, or fast moving motor craft, can cause coastal erosion, which may take the form of long-term losses of sediment and rocks, or merely the temporary redistribution of coastal sediments; erosion in one location may result in accretion nearby. Erosion of coastal line is a natural phenomenon seen all along the coast of Kerala. The report prepared in January, 1918 in connection with the development of port within the backwaters of Cochin, clearly establishes the existence of severe erosion on either side of the Cochin Gut. In fact, the development of port

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facilities within the backwaters had commenced only after 1920. As such, erosion alleged by the petitioner in the writ petition are no way related to the commissioning of Cochin Harbour or functioning of the Cochin Port. The averments to the contrary stated by the petitioner in paragraph 1 to 8 of the writ petition are not correct. The coastal erosion is a natural phenomenon, throughout the coast of Kerala.

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All the projects are undertaken by Cochin Port, only after studying the environmental impacts duly considering the results obtained by modeling conducted through Government agencies namely, National Institute of Oceanography (NIO), Central Water & Power Research Station (CW&PRS), Pune and IIT, Madras. The study results including remedial measures are considered and implemented at the project site.

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It is submitted that at the time of port development in the backwaters, the port provided requisite coastal protection works also as part of the port development activities, as it was essential for the safety of the harbour basin. However, in due course there were development of other economic and social activities along the coast in the region. As these activities are outside the purview of the Cochin Port Trust, coastal protection is to be provided by the concerned authorities.

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In the above regard, it is submitted that, the coastline in front of the Naval Establishment is protected and preserved by the Naval Establishment. The other coastal area mentioned by Petitioner on either side of the Cochin harbour does not belong to

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Cochin Port Trust. It being so, it is the responsibility of the State Government or concerned agency for providing appropriate measures for protection of the shoreline.

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It is also submitted that, the Cochin Port Trust is functioning in compliance with the Environmental Protection Act, Rules and the CRZ Regulations 2011. There is no violation of any norms by the Cochin Port Trust and this establishment is duty bound to protect the environment, including the coastal area, under its control and have resorting to all endeavours to protect the environment.”

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District Collector, Alappuzha, the 7^th respondent, has filed a detailed counter affidavit, setting out the steps taken with reference to the averments and the reliefs sought for.

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Relevant portions of the same are reproduced:-

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“4. As a prelude, it is submitted that Alappuzha district comprises six Taluks namely Cherthala, Ambalapuzha, Kuttanad, Karthikapally, Chengannur, and Mavelikkara. The area of the district is 1414 sq. KM and is flanked by 2195 square kilometers of vembanad lake, where six major rivers spread out before joining the coastline of the district. The city of Alappuzha is crisscrossed by a system of canals. Within the district, Cherthala, Ambalapuzha, Kuttanad and Karthikappally lie completely in the lowland region. Alappuzha has a flat unbroken sea coast having a

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length of 75 Kms., which constitute the 13.9% of the total coastal line of the State. A major part of the district forms part of the coastal plains. The general elevation of the area is less than 6 Mtrs. above mean sea level with some parts of the area below mean sea level in the range of 1-2 Mtrs. Typical coastal geomorphic features such as beaches, shore, platforms, spit and bars, beach ridges etc. are seen. A small part of the district in the southeast forms part of mid land hard rocks. Coastal erosion is one of the grave natural hazards affecting the district and extensive coastal erosion is taking place in the coastal areas of Thottappally and Purakkad. Preventive measures like construction of sea wall of various lengths at Thrikkunnappuzha, Arattupuzha, Pallana, Thottapplly, Purakkad, Punnapra coastal belts to arrest the sea erosion have been attempted to check the hazard of coastal erosion. The dense population and intense land use practices in the area has complicated geomorphological setup.”

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On behalf of the Government of Kerala, respondent No. 2,

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learned State Attorney has filed a detailed statement dated 07.09.2021, explaining the steps taken and proposed to be taken.

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Relevant portions are extracted:-

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“4. Sea erosion has affected the livelihood of several wards fishermen folk communities in coastal districts of Kerala. All the nine coastal districts of Kerala are affected due to coastal

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erosion. The sea wall protection work is being carried out by Irrigation Department. Harbour Engineering Department and Kerala State Coastal Area Development Corporation have undertaken several coastal protection projects under KIIFB, Rebuild Kerala Project and Ockhi Package scheme.

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The important works undertaken by Kerala State Coastal Area Development Corporation include beach stabilization in Manjeswaram harbour (Rs. 1,347 lakh), construction of additional groynes in Thalai, (Rs.348 lakhs), shore protection works from Kollam beach to Thanni in Kollam district (Rs. 3,508 lakh), shore protection work providing beach landing facility for traditional fishermen at Poonthura Rs.1,957 lakh, construction of groynes at Kayamkulam fishing harbour (Rs. 9,242 lakh), Muthalapozhy Shore protection work at Thazhampally side and Kadinamkulam kayal (Rs 686 lakh), construction of groynes on Southern side of estuary of Chettuva fishing harbour, construction of groynes at Thottapally fishing; harbour (Rs 240 lakh).

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The Harbour Engineering Department is implementing the following works under Ockhi package:

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Development of Kayamkulam, Thottappolly, Munambam and Kasargod harbours (Rs 5,470 lakh) and river draining works at Puthyangadi in Kannur district and Shiriya in Kasargod for an amount of Rs 5290 lakh under RKI project.

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Chellanam in Ernakmlam district is the area most adversely affected by sea erosion. The Fisheries Department has

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initiated action to develop Chellanam into a model Matsyagramam.

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Fishing is one of the most dangerous jobs in the world and the Government places utmost importance on the safety of the fishermen who venture into sea for fishing despite the adverse weather conditions. They are bringing good percentage of export earnings of the state. The Department of Fisheries have Fisheries Stations in 5 districts and is coordinating search and rescue operations along with the Marine Enforcement Wing of the Department.

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The coordinated efforts of Department of Fisheries, Coast guard, Navy & Coastal Police in search and Rescue operations help to save the life of fishermen during adverse weather conditions. The following measures were taken for the safety and welfare of fishermen going for fishing:

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Navigation, life saving and fire fighting equipment was made mandatory on all vessels going for fishing.

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Distributed 40,000 life jackets, 941 Navic equipment and 168 satellite phones to traditional fishermen as part of ockhi rehabilitation project.

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Distributed 1664 GPS, 1132 Lifebuoy and 64 DAT from 2018-19 onwards as part of sea safety project.

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Special training to 900 fishermen youth in rescue operations through National institute of Water Sports, Goa (training is in progress).

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Three Marine ambulances with modern facilities for sea rescue operations started functioning at Vizhinjam, Vypin and Beypore.

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Implementation of Sagara mobile application for collecting data of fishermen and vessels going for fishing in the sea.

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Insurance scheme to fishing crafts and engines.

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In order to coordinate sea rescue operations with various Departments and agencies and to provide timely information to the fishermen, a Master control room at Fisheries Directorate and three regional control rooms at Vizhinjam, Vypin, Beypore have been set up and started functioning.

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Compensation is also being given from SDRF fund for the damages of fishing crafts and nets on the occurrence of disasters and calamities. In the Ockhi disaster, damages occurred to several fishing crafts. A technical committee was constituted in the districts to assess the damage and based on the evaluation, an amount of Rs. 7.35 crore was distributed to 492 fishermen. Also compensation around Rs.5 Crore was given for the damages occurred to fishing crafts and implements during 2018 Flood. The Department of Fisheries has started a project for giving insurance coverage to traditional fishing crafts and engines from 2018 onwards. 90% of the premium is met by the Government. Steps have been taken to bring all the crafts under Insurance cover and mass awareness about the project is being given.

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As per Para 14 of the WPC, it is mentioned that NABARD has agreed to aid in the completion of the Harbours at Arthunkal (Rs 61 crore), Kayamkulam (Rs 36 crore), Cheti (Rs 111 crore) and Thottappally (Rs 80 crore). But the above given facts are not true. Development of Arthunkal Fishing Harbour including construction of balance length of breakwater is proposed under FIDF scheme. Sanction of the project under this scheme is awaited. Chethy Fishing Harbour has got sanction under KIIFB project (Rs 97.44Crore). Tender sanction has been given and steps are being taken for the execution of agreement with KSCADC. Work will commence after the execution of agreement.

¶178

The National Centre for Earth Science Studies (NCESS) has prepared the Draft Coastal Zone Management Plan (CZMP) of Kerala based on CRZ notification 2019 for onward submission to Ministry of Environment, Forest and Climate Change (MoEFCC) for approval. An Expert committee chaired by Dr. K.V. Thomas, Scientist. NCESS (Rtd) has been constituted by the Government for the preparation of an Integrated Fisheries Development Plan (IFDP) for incorporation into the Coastal Zone Management Plan (CZMP) of Kerala as per CRZ Notification 2019. The Committee had several sittings and in depth discussions and deliberations were held on the inputs which were received from the various stakeholders. Comments were also received from KCZMA on the pre-draft of the plan. A final report on the Integrated Fisheries Development Plan (IFDP) for incorporation into the CZMP of Kerala has been prepared.

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This plan will safeguard the interests of the fisheries sector and the fisher folk including their housing issues.

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In the aftermath of Ockhi, Fisheries Department had started a project under Ockhi Rehabilitation Project to form Sea Rescue Squad units (SRS) comprising fishermen and their vessels helping rescue operations. An amount of Rs 7.15 crore has been sanctioned from the CMDRF fund for the deployment of 900 Sea Rescue Squads with special training to rescue fishermen at sea. The selected fishermen were given specialized training at National Institute of Water Sports, Goa. They are given training on sea rescue operations, life-saving techniques, power boat handling, sea safety equipment operation and other disaster management techniques. So far, 612 fishermen from nine coastal districts have completed the training in 16 batches. The training of the 900 member Sea Rescue Squad was scheduled to be completed by December 2020. However, the training was postponed due to Covid 19 restrictions. Uniforms, GPS, torches and life buoys were also distributed to fishermen who have completed training. For sea rescue operations 80 trained Sea Rescue Squads have been appointed in five fisheries stations. Three Marine ambulances with modern facilities for sea rescue operations started functioning at Vizhinjam, Vyppin and Beypore. In addition to that seven fishing boats hired by the Government are also operating in all the marine districts for rescue operation.

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Fisheries Information Management System (FIMS) software has been developed by National Informatics Centre for including all the details of fishermen, fish allied workers and

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pensioners and their family members. It helps to place a proper system to manage welfare activities to registered fisher folk and family members and to maintain a record of it for analysis. It also provides work flow based system for processing applications submitted by beneficiaries for receiving benefit for around 40 welfare activities in which approval and appeal authority varies based on service. Beneficiaries can receive their benefits through DBT system.

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Department of Fisheries is currently providing assistance to the fisher folk irrespective of whether they belong to APL or BPL category. Details of existing relief and welfare schemes under taken by Fisheries Department is as follows.

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Savings cum relief scheme

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Rehabilitation of fishermen residing within 50 m High Tide Line

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Educational concession to children of fishermen

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Educational coaching programmes to children of fishermen and library support in coastal areas

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Free education to children of fishermen who died in Ockhi disaster

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Motorisaiton of country crafts and gear subsidy

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Old age Pension to fishermen and fishermen widows

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Group Accident Insurance to fishermen and fish allied workers

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Free Ration during trawl ban period

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Kerosene subsidy to traditional fishermen

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Free transportation to women fish vendors

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Insurance scheme to fishing crafts and fishing implements

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Providing insulated fish boxes to traditional fishermen

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Providing sea safety equipment to traditional fishermen

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Various welfare schemes are also being implemented by the agencies under the Department of Fisheries. Matysafed is implementing schemes facilitating credit support to fishermen through NCDC, NBCFDC, NMDFC etc. Microfinace, Interest free loan to fish vending women. Loan Distress Relief Scheme, Motorisation of country crafts, subsidy to fishing gears etc is provided. Society for Assistance for Fisher women (SAF) is implementing various projects for the empowerment of fisher women in the coastal areas. Theeramythri project, Theernypunya, 3R package for ensuring sustainable livelihood of fisher women in Kerala (Re-building, Revival, Reforms), Joint Liability Group formation for credit support to fish vending women, sea food restaurants, apparel park for fisher women are some of the major activities of SAF.

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Kerala Fishermen Welfare Fund Board is also implementing various welfare schemes for the fishermen and fish allied workers. Apart from this, Department of Fisheries is implementing various projects under plan, RIDF and KIIFB for the coastal infrastructure development. Infrastructure development programmes include sanitation, educational infrastructures, hospitals, library, drinking water, electrification infrastructure works and modernisation of fish markets etc.

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An amount of Rs. 11.64 crores and Rs. 6.09 crores had been disbursed to fish farmers and fishermen who lost their fishing implements & farming area due to flood 2018 and 2019. In the year 2020, an amount of Rs. 36.126 crore had been disbursed to 207104 fishermen families (marine and inland families @ Rs 2000 and allied members @ Rs 1000) who lost their livelihood due to cyclone & covid first phase. An amount of Rs 18.36 crore has been disbursed to 153040 marine and allied fishermen families' @Rs 1200, who lost their livelihood due to Taute cyclone & covid second phase. An amount of Rs. 32.47 crore had been disbursed to 324742 fishermen through Kerala Fishermen Welfare Fund Board who lost their livelihood due to cyclone. Free food kit containing 20 items disbursed to marine families and steps have been taken for giving kit to inland and allied families.

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Rapid erosion and the increasing pressure of human development are threatening nearly half of the thickly populated coastline in Kerala which has made the large scale displacement of the residents from the sea coast an inevitability. A survey was conducted by the Department of Fisheries along the coastal districts to collect the data on houses within 50m of the HTL as a part of planning to implement a rehabilitation scheme in all the coastal districts of the State for rehabilitating the residents living within 50 meters from HTL. The survey revealed that 18650 families are residing within 50 m of High Tide and are prone to sea erosion. PUNARCEHAM project envisages to rehabilitate families residing within 50 meters of HTL to safer places beyond

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200 m of HTL with a total outlay of Rs 2,450 Crore to be implemented within a span of three years starting from 2019 2020. Out of Rs. 2450 crore Rs. 1398 crore is the CMDRF share and Rs. 1052 crore is the state Plan fund. The implementation of this flag ship project is fast progressing. The current allocation under the project is Rs 10 Lakh per beneficiary. It is also stated that all the projects planned and executed under the Department of Fisheries is envisaged for the financial, social and educational upliftment of fisher folk.

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It is also submitted that the Irrigation Department has also undertaken various measures in this regard.

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Over the years, Irrigation Department had been taking up temporary and permanent coastal protection works to protect the sea coast of 9 coastal Districts of Kerala namely Thiruvanathapuram, Kollam, Alappuzha, Ernakulam, Thrissur, Malappuram, Kannur, Kozhikode and Kasaragod.

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During the FY 2020-21, an amount of Rs.6.5 crores under Non Plan head and Rs. 1 Crore under Plan head was earmarked for coastal protection works through out the coastal stretch of Kerala and during the current financial year 2021-22, an amount of Rs.6.582 Crores under Non Plan head and Rs.2.40 Crores under Plan head are allotted for the purpose. The coastal protection works such as reformation of existing sea walls, construction of original sea wall/groynes, emergency coastal protection works using geobags etc. are arranged using this fund.

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In addition to this, during the FY 2020-21, the Government had accorded sanction of Rs. 2 crores each for the 9 coastal districts and during the FY 2021-22, Rs.1.00 crore each was sanctioned for all coastal districts except Ernakulam, for arranging emergency coastal protection works. Considering the heavy sea attack at Chellanam area in Ernakulam District, an amount of Rs.2.00 crores was sanctioned from Government for taking up emergency work at Chellanam.

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During the last few years, the wave pattern at various coastal stretches has changed drastically and a detailed study is to be conducted for proposing suitable site specific coastal protection measure. Hence 10 hot spots which are prone to vulnerable sea attacks were identified across the State for conducting coastal study through expert agencies like NCCR. The hot spots identified are Kollemkode, (Thiruvananthapuram) Sangumugham (Thiruvananthapuram), Alappad (Kollam), Ottamaserry (Alappuzha), Chellanam (Ernakulam), Kodungallur (Thrissur), Ponnani (Malappuram), Kappad (Kozhikkode), Thalassery (Kannur) and Valiyaparambu (Kasaragod). Chellanam being the most vulnerable affected area in the state, the area was given top most priority and studies were conducted. Based on the study by NCCR, a hybrid coastal protection measure (a combination of sea wall and groynes using tetrapods) were developed and the estimate amounting to Rs.344.20 crores was sanctioned for taking up the work through KIIFB.

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The major anti sea erosion works taken up in Thiruvananthapuram, Kollam, Alappuzha and Ernakulam Districts are as follows:

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Thiruvananthapuram

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During the year 2020-21, an amount of Rs. 559.30 lakhs was sanctioned for urgent anti sea erosion works in Thiruvananthapuram district. In the year 2021-22, sanction was accorded for Rs. 133.71 lakhs for ASE works considering the heavy sea attack during monsoon season. Emergency works like core wall construction, protection using sand filled geo bags etc. were arranged by using this fund.

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Kollam

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During the year 2020-21, an amount of Rs. 264.20 lakhs was sanctioned for urgent anti sea erosion works in Kollam district. In the year 2021-22, sanction was accorded for Rs. 80.10 lakhs for ASE works considering the heavy sea attack during monsoon season. Emergency works like core wall construction, protection using sand filled geo bags etc. were arranged by using this fund.

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Alappuzha

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During the year 2020-21, an amount of Rs. 241.40 lakhs was sanctioned for urgent anti sea erosion works in Alappuzha district. In the year 2021-22, sanction was accorded for Rs. 114.84 lakhs for ASE works considering the heavy sea attack during monsoon season. Emergency works like core wall

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construction, protection using sand filled geo bags etc. were arranged by using this fund.

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Ernakulam:

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In the FY 2020-21, works amounting a total of Rs. 1874 Lakhs have been sanctioned under Plant Non Plan heads for undertaking reformation works and emergency coastal protection works.

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In the FY 2021-22, till date works amounting to Rs. 250 lakhs has been sanctioned for undertaking emergency coastal protection works.

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In addition to this, based on the study by NCCR, a hybrid coastal protection measure (a combination of sea wall and groynes using tetrapods) were developed and the estimate amounting to Rs.344.20 crores was sanctioned for taking up the work through KIIFB.

¶228

Though the respondents in their respective counter affidavits

¶229

have set out various preventive and other measures taken to rehabilitate the victims, Mr. N. M. Madhu, learned counsel for the petitioner, submitted that all those steps and measures taken, detailed in the counter affidavits of Government of Kerala and the District Collector, Alappuzha, respondent Nos. 2 and 7 respectively, are only temporary measures, and that the abovesaid respondents have not submitted any detailed plan, as a permanent measure, to ventilate the

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grievance of the people residing nearby the coastal areas.

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He further submitted that having regard to the various issues

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such as, soil erosion, invasion of beach-side properties, suffering of the fisherman community, quarries across the coastal area, and in the larger interest of the welfare of the coastal population, this Court should retain the writ petition, and issue periodical directions to effectively monitor the steps taken, for a permanent measure.

¶234

However, Mr. K. R. Ranjith, learned Government Pleader, by inviting the attention of this Court to paragraphs Nos. 4, 5 and 11 of the statement filed on behalf of the Government of Kerala dated 07.09.2021, submitted that various authorities, namely Kerala State Coastal Area Development Corporation and Harbour Engineering Department, have undertaken several coastal protection projects under KIIFB, Rebuild Kerala Project and Ockhi Package Scheme.

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Added further, he submitted that the National Centre for Earth Science Studies has prepared a Draft Coastal Zone Management Plan for Kerala based on CRZ notification 2019, for onward submission to the Ministry of Environment, Forest and Climate

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Change, for approval.

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He also submitted that an Expert Committee has been constituted by the Government for the preparation of an Integrated Fisheries Development Plan, for incorporation of the Coastal Zone Management Plan of Kerala, as per CRZ notification 2019.

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According to him, final report on Integrated Fisheries Development Plan, for incorporation into the Coastal Zone Management Plan of Kerala, has also been prepared. He further submitted that Expert Committee's study and recommendations would be considered by the Government, for appropriate decision and action.

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Having heard the learned counsel for the parties on the averments made in the writ petition, duly responded by the statement of the Government of Kerala, respondent No. 2, and the counter affidavits of the Secretary, Ministry of Environment, Forest and Climate Change, New Delhi, the Chairman, Cochin Port Trust and the District Collector, Alappuzha, respondent Nos. 1, 3 and 7 respectively, we are of the view that steps have been taken by abovesaid respondents, however, as rightly pointed out by Mr. N. M. Madhu,

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learned counsel for the petitioner, that on the facts and circumstances of the instant case, action taken by the respondents, though appropriate, but then, should be a permanent measure, to alleviate the grievances and hardships faced by the people residing near coastal areas, moreso, the fishermen, and they should not be compelled to approach this Court, by filing another writ petition. According to the learned counsel for the petitioner, any measure and action taken by all concerned should be a permanent feature.

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Giving due consideration to all the material on record, we observe that the grievances expressed should be remedied permanently.

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Having regard to the constitution of the Expert Committee for preparation of Integrated Fisheries Development Plan for incorporation into the Coastal Zone Management Project, as per CRZ notification 2019, we direct the Chief Secretary, Government Secretariat, Thiruvananthapuram, 2^nd respondent, to consider the report submitted by the National Centre for Earth Science Studies on Coastal Zone Management Plan of Kerala, based on 2019 notification, and examine the report with all seriousness, and promptitude, before

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submission of any remarks / report to the Ministry of Environment, Forest and Climate Change, for approval. Every issue dealt with in the report, be examined, and remedial measures, as a permanent feature, be dealt with.

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The Secretary, Ministry of Environment, Forest and Climate Change, New Delhi, the 1^st respondent, and the Chief Secretary, Government Secretariat, Thiruvananthapuram, the 2^nd respondent, are directed to work in tandem, and make ways and means for a permanent solution, for prevention of sea erosion.

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In the light of which we have considered, observed and directed, let decisions and action taken be in conformity with Article 21 of the Constitution of India, right to life.

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Sd/-

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S. MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P. CHALY JUDGE

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///TRUE COPY/// P. A. TO JUDGE

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APPENDIX OF WP(C) 5835/2018

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PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE BOOK NAMED 'A QUEEN'S STORY' BY D BABU PAUL. EXHIBIT P2 TRUE COPY OF THE WRITTEN SUBMISSION MADE BY DR. K.S MANOJ, MEMBER OF PARLIAMENT.

Rev. Dr.Fr.v.P.Joseph Valiyaveettil v. Union of India

Case brief

What is this about?

What did the court decide?

Rev. Dr.Fr.v.P.Joseph Valiyaveettil v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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