Supreme Court of India
ASSOCIATION FOR ENVIRONMENT PROTECTIONversusSTATE OF KERALA AND OTHERS
- Citation
- 2013 INSC 413
- Decided
- 2 July 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The construction of the restaurant without environmental clearance violated the public trust doctrine and the State's constitutional duty under Article 48-A, rendering the sanction unlawful.
Summary
The Association for Environment Protection challenged the construction of a restaurant on reclaimed land along the Periyar River in Aluva, Kerala, arguing that the project violated environmental safeguards. The State Government had sanctioned the project without referring it to the Environmental Planning and Coordination Committee as required by the Government Order dated 13 January 1978, which implements the constitutional duty under Article 48-A to protect the environment. The Supreme Court examined the applicability of the public trust doctrine, noting that natural resources such as rivers are held in trust by the State for public use and cannot be alienated for private or commercial purposes. It held that the project proceeded ex facie contrary to the 1978 order and infringed the fundamental right to life under Article 21. Consequently, the Court set aside the High Court's dismissal, ordered demolition of the restaurant structure, and affirmed the need for environmental clearance before such projects.
Issues considered
- The legality of constructing a restaurant on reclaimed riverbank land without environmental clearance under the 1978 Government Order and Article 48-A.
- Whether the public trust doctrine applies to the Periyar River and bars its commercial exploitation.
- Whether the failure to obtain clearance violates the fundamental right to life under Article 21.
Legislation cited
Subjects
environmental lawpublic trust doctrineArticle 48-AArticle 21environmental impact assessmentriver protectionconstitutional lawjudicial review
Judgment
[2013] 7 S.C.R. 352
A ASSOCIATION FOR ENVIRONMENT PROTECTION
v.
STATE OF KERALA AND OTHERS
(Civil Appeal No. 4941 of 2013)
JULY 02, 2013 ;r
B
[G.S. SINGHVI AND SHARAD ARVIND BOBDE, JJ.]
CONSTITUTION OF IND/A, 1950:
c Arts. 48-A and 51-A(g) read with Art. 21 - Protection and
improvement of environment including forests, rivers, lakes
and wildlife - Held: The constitutional mandate and the
"doctrine of public trust" enjoins upon the Government to
protect the resources for enjoyment of general public rather
than to permit their use for private ownership or commercial
0
exploitation to satisfy the greed of few - In the instant case,
execution of the project, including construction of restaurant
on the bank of river, is ex- facie contrary to the mandate of
G.O. dated 13.1.1978, which was issued byState Government
E in discharge of its Constitutional obligation under Art. 48-A -
- Respondents are directed to demolish the structure raised
- Doctrine of public trust - G.O. dated 13.7.1978 issued by
Government of Kera/a - Environmental law.
Aluva Municipality in Kerala reclaimed a part of
F Periyar river within its jurisdiction. The District Tourism
Promotion Council, decided to construct a restaurant on
the reclaimed land by citing convenience of the public
coming on"5ivarathri festival as the cause. The proposal
of the prOJect at an estimated cost of Rs.55,72,4321- was
G accorded administrative sanction by the State
Government. When construction of the building was
started, the appellant, a registered body engaged in the •
protection of environment in the State of Kerala, filed a .
writ petition before the High Court and prayed that the
H 352
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 353
STATE OF KERALA
respondents be restrained from continuing with the A
construction of the hotel building on the banks of river
Periyar. The Division Bench of the High Court dismissed
1
the writ petition observing that only a restaurant was
being constructed and not a hotel, as claimed by the
appellant. B
Allowing the appeal, the Court
HELD: 1.1 "Doctrine of the Public Trust" enjoins
upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their C
use for private ownership or commercial exploitation to
satisfy the greed of few. The courts in different
jurisdictions have, time and again, invoked the public trust
doctrine for giving judicial protection to environment,
ecology and natural resources. This Court also D
recognized the importance of the public trust doctrine and
applied the same in several cases for protecting natural
resources which have been treated as public properties
and are held by the Government as trustee of the people.
[Para 3 and 5] [356-B-C, F-G] E
M.C. Mehta v. Kamal Nath 1996 (10) Suppl. SCR 12 =
(1997) 1 SCC 388; M./. Builders Pvt. Ltd. v. Radhey Shyam
Sahu 1999 (3) SCR 1066 (1999) 6 SCC 464; Intellectuals
Forum, Tirupathi v. State of A.P. 2006 (2) SCR 419 (2006) 3 F
SCC 549; and Fomento Resorts and Hotels Ltd. v. Minguel.
Martins 2009 (3) SCR 1 = (2009) 3 SCC 571- relied on.
l/linois Central Railroad Co. v. People of the State of
Illinois, 146 US 387; Gould v. Greylock Reservation
Commission 350 Mass 410 (1966); Sacco v. Development G
of Public Works, 532 Mass 670; Robbins v. Deptt. of Public
Works 244 NE 2d 577 and National Audubon Society v.
Superior Court of Alpine County 33 Cal 3d 419 - referred to.
1.2 Art. 48-A as inserted in Part IV of the Constituticn H
354 SUPREME COURT REPORTS [2013) 7 S.C.R.
A of India, casts upon the State the responsibility of making
an endeavour to protect and improve the environment
and to safeguard fores~ and wildlife of the country. By
the same amendment, Fundamental Duties of the citizens
were enumerated in Art. 51-A, inter alia, the duty to protect
8 and improve the natural environment including forests,
lakes, rivers, wildlife and to have compassion for living
creatures [Article 51-A(g)]. The G.O. dated 13.1.1978 is
illustrative of the State Government's commitment to
protect and improve the environment as enshrined in Art.
C 48A. The object of the G.O. is to ensure that no project
costing more than Rs.10 lakhs should be executed and
implemented without a comprehensive evaluation by an
expert body which can assess possible impact of the
project on the environment and ecology of the area
including water bodies, i.e., rivers, lakes etc. There is
D nothing on record to show that the G.O. dated 13.1.1978
has been amended or conditions embodied therein have
been relaxed. By omitting to refer the project to the
Environmental Planning and Co-ordination Committee,
the District Tourism Promotion Council and the
E Department of Tourism avoided scrutiny of the project in
the light of the parameters required to be kept in view for
protection of environment of the area and the river. The
subterfuge employed by the District Promotion Council
and the Department of Tourism has resulted in violation
F of the fundamental right to life guaranteed to the people
of the area under Art. 21 of the Constitution. [Para 4, 19
and 20] (356-D-F; 368-A, D-F, G-H; 369-A]
1.3 Therefore, it must be held that the execution of
G the project including construction of restaurant is ex facie
contrary to the mandate of G.O. dated 13.1.1978, which
was issued by the State Government in discharge of its
Constitutional obligation under Art. 48-A. The impugned ·
order is set aside. The respondents are directed to
demolish the structure raised. [Para 19 and 21] [368-C;
H 369-B-C]
A.SSOCIATION FOR ENVIRONMENT PROTECTION v. 355
STATE OF KERALA
Case Law Reference: A
1996 (10) Suppl. SCR 12 relied on para 5
1146 us 387 referred to para 5
350 Mass 410 (1966) referred to para 5
B
532 Mass 670 referred to para 5
244 NE 2d 577 referred to para 5
33 Cal 3d 419 referred.· to para 5
c
1999 (3) SCR 1066 relied on para 6
2006 (2) SCR 419 relied on para 7
2009 (3) SCR relied on para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
4941 of 2013.
From the Judgment and Order dated 21.03.2006 of the
High Court of Kerala at Ernakulam in W.P. (C) No. 436 of 2006.
E
Deepak Prakash, Haritha for the Appellant.
Liz Mathew, M.F. Philip, R. Sathish, M. Gireesh Kumar,
Khwairakpam Nobin Singh for the Respondents.
The Judgment of the Court was delivered by F
G.S. SINGHVI, J. 1. Leave granted.
2. Since time immemorial, people across the world have
always made efforts to preserve and protect the natural
resources like air, water, plants, flora and fauna. Ancient fG
scriptures of different countries are full of stories of man's zeal
. to protect the environment and ecology. Our sages and saints
always preached and also taught the people to worship earth,
sky, rivers, sea, plants, trees and every form of life. Majority of
people still consider it as their sacred duty to protect the plants, H
356 SUPREME COURT REPORTS [2013) 7 S.C.R.
A trees, rivers, wells, etc., because it is believed that they belong
to all living creatures.
3. The ancient Roman Empire developed a legal theory
known as the "Doctrine of the Public Trust". It was founded on
B the premise that certain common properties such as air, sea,
water and forests are of immense importance to the people in
general and they must be held by the Government as a trustee
for the free and unimpeded use by the general public and it
would be wholly unjustified to make them a subject of private
ownership. The doctrine enjoins upon the Government to protect
C the resources for the enjoyment of the general public rather than
to permit their use for private ownership or commercial
exploitation to satisfy the greed of few.
4. Although, the Constitution of India, which was enforced
D on 26.1.1950 did not contain any express provision for
protection of environment and ecology, the people continued
to treat it as their social duty to respect the nature, natural
resources and protect environment and ecology. After 26 years,
Article 48-A was inserted in Part IV of the Constitution and the
E State was burdened with the responsibility of making an
endeavour to protect and improve the environment and to
safeguard the forest and wildlife of the country. By the same
amendment, Fundamental Duties of the citizens were
enumerated in the form of Article 51-A (Part-IV A). These
F include the duty to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have
compassion for living creatures [Article 51-A(g)].
5. The Courts in different jurisdictions have, time and
l<again, invoked the public trust doctrine for giving judicial
G trprotection to environment, ecology and natural resources. This
1• Court also recognized the importance of the public trust doctrine
8 and applied the same in several cases for protecting natural
resources which have been treated as public properties and
are held by the Government as trustee of the people. The
~H judgment in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 is
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 357
STATE OF KERALA [G.S. SINGHVI, J.]
an important milestone in the development of new jurisprudence A
by the Courts in this country for protection of environment. In
that judgment, the Court considered the question whether a
private company running tourists resort in Kullu-Manali valley
could block the flow of Beas river and create a new channel to
divert the river to at least one kilometer down stream. After B
adverting to the theoretical and philosophical basis of the public
trust doctrine and judgments in Illinois Central Railroad Co. v.
People of the State of Illinois, 146 US 387; Gould v. Greylock
Reservation Commission 350 Mass 410 (1966}; Sacco v.
Development of Public Works, 532 Mass 670; Robbins v. c
Deptt. of Public Works 244 NE 2d 577 and National Audubon
Society v. Superior Court of Alpine County 33 Cal 3d 419, this
Court observed:
"Our legal system - based on English common law -
includes the public trust doctrine as part of its D
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and
enjoyment. Public at large is the beneficiary of the sea-
shore, running waters, airs, forests and ecologically fragile
lands. The State as a trustee is under a legal duty to E
protect the natural resources. These resources meant for
public use cannot be converted into private ownership.
We are fully aware that the issues presented in this case
illustrate the classic struggle between those members of F
the public who would preserve our rivers, forests, parks and
open lands in their pristine purity and those charged with
administrative responsibilities who, under the pressures of
the changing needs of an increasingly complex society,
find it necessary to encroach to some extent upon open G
lands heretofore considered inviolate to change. The
resolution of this conflict in any given case is for the
legislature and not the courts. If there is a law made by
Parliament or the State Legislatures the courts can serve
as an instrument of determining legislative intent in the
H
358 SUPREME COURT REPORTS [2013] 7 S.C.R.
A exercise of its powers of judicial review under the
Constitution. But in the absence of any legislation, the
executive acting under the doctrine of public trust cannot
abdicate the natural resources and convert them into
private ownership, or for commercial use. The aesthetic
B use and the pristine glory of the natural resources, the
environment and the ecosystems of our country cannot be
permitted to be eroded for private, commercial or any
other use unless the courts find it necessary, in good faith,
for the public good and in public interest to encroach upon
c the said resources."
6. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu
(1999) 6 SCC 464, the Court applied public trust doctrine for
upholding the order of Allahabad High Court which had
quashed the decision of Lucknow Nagar Mahapalika permitting
D appellant - M.I. Builders Pvt. Ltd. to construct an underground
shopping complex in Jhandewala Park, Aminabad Market,
Lucknow, and directed demolition of the construction made on
the park land. The High Court had noted that Lucknow Nagar
Mahapalika had entered into an agreement with the appellant
E for construction of shopping complex and given it full freedom
to lease out the shops and also to sign agreement on its behalf
and held that this was impermissible. On appeal by the builders,
this Court held that the terms of agreement were unreasonable,
unfair and atrocious. The Court then invoked the public trust
F doctrine and held that being a trustee of the park on behalf of
the public, the Nagar Mahapalika could not have transferred the
same to the private builder and thereby deprived the residents
of the area of the quality of life to which they were entitled under
the Constitution and Municipal Laws.
G
7. In Intellectuals Forum, Tirupathi v. State of A.P. (2006)
3 SCC 549, this Court again invoked the public trust doctrine
in a matter involving the challenge to the systematic destruction
of percolation, irrigation and drinking water tanks in Tirupati
town, referred to some judicial precedents including M. C.
H
' ' ' '
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 359
STATE OF KERALA [G,S. SINGHVI, J.]
Mehta v. Kamal Nath (supra), M.I. Builders Pvt. Ltd. (supra), A
' National Audubon Society (supra), and observed:
"This is an articulation of the doctrine from the angle of the
affirmative duties of the State with regard to public trust.
Formulated from a negatory angle, the doctrine does not
8
exactly prohibit the alienc1tion of the property held as a
public trust. However, when the State holds a resource that
is freely available for the use of the public, it provides for
a high degree of judicial scrutiny on any action of the
Government, no matter how consistent with the existing C
legislations, that attempts to restrict such free use. To
properly scrutinise such actions of the Government, the
courts must make a distinction between the Government's
general obligation to act for the public benefit, and the
special, more demanding obligation which it may have as
a trustee of certain public resources ..... " D
8. In Fomento Resorts and Hotels Ltd. v. Minguel Martins
(2009) 3 sec 571, this Court was called upon to consider
whether the appellant was entitled to block passage to the
beach by erecting fence in the garb of protecting its property. E
After noticing the judgments to which reference has been made
hereinabove, the Court held:
"The public trust doctrine enjoins upon the Government to
protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership
F
or commercial purposes. This doctrine puts an implicit
embargo on the right of the State to transfer public
properties to private party if such transfer affects public
· interest, mandates affirmative State action for effective
. management of natural resources and empowers the G
citizens to question ineffective management thereof.
The heart of the public trust doctrine is that it imposes limits
and obligations upon government agencies and their
administrators on behalf of all the people and especially H
360 SUPREME COURT REPORTS [2013] 7 S.C.R.
A future generations. For example, .renewable and non-
renewable resources, as~ociated uses, ecological values
or objects in which the public has a special interest (i.e.
public lands, waters, etc.) are held subject to the duty of
the State not to impair such resources, uses or values, even
B if private interests are involved. The same obligations apply
to managers of forests, monuments, parks, the public
domain and other public assets. Professor Joseph L. Sax
in his classic article, "The Public Trust Doctrine in Natural
Resources Law: Effective Judicial Intervention" {1970),
c indicates that the public trust doctrine, of all concepts
known to law, constitutes the best practical and
philosophical premise and legal tool for protecting public
rights and for protecting and managing resources,
ecological values or objects held in trust.
D The public trust doctrine is a tool for exerting long-
established public rights over short-term public rights and
private gain. Today every person exercising his or her right
to use the air, water, or land and associated natural
ecosystems has the obligation to secure for the rest of us
E the right to live or otherwise use that same resource or
property for the long-term and enjoyment by future
generations. To say it another way, a landowner or lessee
and a water right holder has an obligation to use such
resources in a manner as not to impair or diminish the
F people's rights and the people's long-term interest in that
property or resource, including down slope lands, waters
and resources.
xxxx xxxx xxxx
G We reiterate that natural resources including forests, water
bodies, rivers, seashores, etc. are held by the State as a
trustee on behalf of the people and especially the future
generations. These constitute common properties and
people are entitled to uninterrupted use thereof. The State
H cannot transfer public trust properties to a private party, if
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 361
STATE OF KERALA [G.S. SINGHVI, J.]
such a transfer interferes with the right of the public and A
the court can invoke the public trust doctrine and take
affirmative action for protecting the right of people to have
access to light, air and water and also for protecting rivers,
sea, tanks, trees, forests and associated natural
ecosystems." B
9. We have prefaced disposal of this appeal by discussing
the public trust doctrine and its applicability in different situations
because the Division Bench of the Kerala High Court, which
dealt with the writ petition filed by the appellant for restraining C
the respondents from constructing a building (hotel/restaurant)
on the banks of river Periyar within the area of Aluva
Municipality skirted the real issue and casually dismissed the
writ petition only on the ground that while the appellant had
questioned the construction of a hotel, the respondents were
actually constructing a restaurant as part of the project for D
renovation and beautification of Manalpuram Park.
10. The people of the State of Kerala, which is also known
world over as the 'God's Own Country' are very much conscious
of the imperative of protecting environment and ecology in E
general and the water bodies, i.e., the rivers and the lakes in
particular, which are integral part of their culture, heritage and
an important source of livelihood. This appeal is illustrative of
the continuing endeavour of the people of the State to ensure
that their rivers are protected from all kinds of man made F
pollutions and/or other devastations.
11. The appellant is a registered body engaged in the
protection of environment in the State of Kerala. It has
undertaken scientific studies of environment and ecology,
planted trees in public places and published magazines on the G
subjects of environment and ecology. In 2005, Aluva
Municipality reclaimed a part of Periyar river within its
jurisdiction and the District Tourism Promotion Council,
Ernakulam decided to construct a restaurant on the reclaimed
H
362 SUPREME COURT REPORTS [2013] 7 S.C.R.
A land by citing convenience of the public coming on Sivarathri
festival ·as the cause. The proposal submitted by the District
Tourism Promotion Council was forwarded to the State
Government by the Director, Department of Tourism by
including the same in the project for renovation and
B beautification of Manalpuram Park. Vide order dated
20.5.2005, the State Government accorded administrative
sanction for implementation of the project at an estimated cost
of Rs.55, 72,432/~.
12. When the District Promotion Council started
C construction of the building on the reclaimed land, the appellant
filed Writ Petition (C) No.436/2006 and prayed that the
respondents be restrained from continuing with the construction
of building on the banks of river Periyar and to remove the
construction already made. These prayers were founded on the
D following assertions:
(a) Periyar river is a holy river called "Dakshin Ganga",
on the banks of which famous Sivarathri festival is
conducted.
E
(b) The river provides water to lakhs of people res·iding
within the jurisdiction of44 local bodies on its either
side.
(c) In 1989, a study was conducted by an expert body
F and Periyar Action Plan was submitted to the
Government for protecting the river but the latter has
not taken any action.
(d) In December, 2005, Aluva Municipality reclaimed
G the land which formed part of the river and in the
guise of promotion of tourism, efforts are being
made to construct a hotel.
(e) The construction of hotel will adversely affect the
flow of water as well as the river bed.
H
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 363
STATE OF KERALA [G.S. SINGHVI, J.)
(f) The construction of the building will adversely affect A
Marthanda Varma Bridge.
(g) The respondents have undertaken construction
without conducting any environmental impact
assessment and in violation of the provisions of B
Kerala Protection of River Banks and Regulation of
Removal of Sand Act, 2001.
(h) The construction of hotel building is ultra vires the
provisions of notification dated 13.1.1978 issued
by the State Government, which mandates c
assessment of environmental impact as a condition
precedent for execution of any project costing more
than Rs.10,00,000/-.
13. In the written statement filed on behalf of the D
respondents, the following averments were made:
(i) District Tourism Promotion Council has undertaken
construction of a restaurant and not a hotel as part
of the project involving redevelopment and
beautification of Manalpuram Park. E
(ii) The State Government has accorded sanction vide
G.O. dated 20.5.2005 for construction of a
restaurant.
F
(iii) The restaurant is meant to serv~ large number of
people who come during Sivarathri celebrations.
(iv) The construction of restaurant will neither obstruct
free flow of water in the river nor cause damage to
the ecology of the area. G
(v) There will be no diversion of water and the strength
of the pillars of Marthanda Varma Bridge will not be
affected.
H
364 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 14. The Division Bench of the High Court took cognizance
of the sanction accorded by the State Government vide order
dated 20.5.2005 for renovation and beautification of
Manalpuram Park and dismissed the writ petition by simply
observing that only a restaurant is being constructed and not a
B hotel, as claimed by the appellant. The cryptic reasons
recorded by the High Court for dismissing the writ petition are
extracted below:
"From the facts as gathered above, it transpires that no
hotel at all is being constructed in the river belt. The
c petitioner does not appear to have ascertained the correct
facts before filing the present petition. Main allegation by
the petitioner that a hotel is being constructed on the banks
of Periyar river is found to be incorrect. There is no merit
in this writ petition. It is hereby dismissed."
D
15. Shri Deepak Prakash, learned senior counsel for the
appellant invited the Court's attention to order dated 13.1.1978
issued by the State Government and argued that the sanction
accorded by the State Government on 20.5.2005 for renovation
E and beautification of Manalpuram Park did not have the effect
of modifying G.O. dated 13.1.1978 which mandates that all
development schemes costing Rs.10 lakhs or more should be
referred to the Environmental Planning and Coordination
Committee for review and assessment. Learned counsel
F submitted that unless the project was reserved for consideration
by the Committee constituted by the State Government, the
respondents could not have undertaken construction of the
restaurant.
16. Learned counsel for the respondents could not draw
G our attention to any document to show that the construction of
restaurant building was undertaken after obtaining clearance
from the Environmental Planning and Coordination Committee
as per the requirement of G.O. dated 13.1.1978. She, however,
submitted that the construction of restaurant which is an integral
H part of the project rell:lting to renovation and beautification of
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 365
STATE OF KERALA [G.S. SINGHVI, J.]
Manalpuram Park is not going to adversely impact the flow of A
Periyar river or otherwise affect the environment and ecology
of the area.
17. We have considered the respective arguments and
scrutinized the record. On 13.1.1978, the Government of Kera la 8
accepted the recommendations made by the State Committee
on Environmental Planning and Coordination and issued an
order, which was published in Official Gazette dated 7.2.1978
for review and assessment of environmental implications of
various projects. The relevant portions of that order are C
reproduced below:
"In the light of the recommendation of the State Committee
on Environmental Planning and Co-operation in their
second meeting held on 23. 7 .1977, Government are
pleased to order as follows: D
1. All development schemes costing Rs.10 lakhs and
above will be referred to the Committee on Environmental
Planning and Co-ordination for review and assessment of
environmental implications in order to integrate E
environmental concerns and the clearance of the
committee will be obtained before the scheme share
sanctioned and taken up for execution.
2. In the case of projects costing Rs.25 lakhs and above
the Department concerned will while referring the projects F
for review and clearance by the committee furnish detailed
and comprehensive environmental impact statement for the
project prepared with the help of experts.
3. In the case of schemes costing less than Rs.1 O lakhs, G
the Environmental implication will be assessed by the
concerned department in the light of guidelines formulated
by the committee and the concerned department will be
responsible to ensure that suitable remedial measures for
protecting the environment are incorporated in the scheme
H
366 SUPREME COURT REPORTS [2013] 7 S.C.R.
A · itself before the schemes are sanctioned and taken up for
implementation. If the department concerned feels certain
that with the safeguards provided in the scheme, the
ecological stability and purity of environment will be
maintained they can go ahead with the scheme without
B reference to the committee. Doubtful cases will however
be referred to the committee for clearance.
By order of the Government.
SD/-
P.K. Rajasekharan Nair
c Under Secretary."
18. By G.O. dated 20.5.2005, the State Government
accorded administrative sanction for renovation and
beautification of Mana~puram Park and construction of a
D restaurant at Aluva at an estimated cost of Rs.55,72,432/-. That
order reads as under:
"GOVERNMENT OF KERALA
Abstract
E
Department of Tourism -Working Group on Plan Schemes
- Renovation of Manalppuram Park and construction of
Restaurant at Aluva - Administrative Sanction accorded -
Orders issued.
F
TOURISM (A) DEPARTMENT
G.O.(Rt) No.3974/05/GAD. Dated, Thiruvananthapuram
20.05.2005
G
Read:
Letter No.C2-22446/04, dated 11.04.2005 from the
Director, Department of Tourism, Thiruvananthapuram.
H
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 367
STATE OF KERALA [G.S. SINGHVI, J.]
ORDER A
The Aluva Manalppuram is a significant pilgrim
centre as well as tourism spot. The Aluva Manalppuram
is famous for Shivarathri celebrations. The pilgrims visiting
Kalady, the birthplace of Shri Shankaracharya include this B
spot also in the schedule of visit. The Director, Department
of Tourism as per the letter read above has fo!Warded a
proposal submitted by the District Collector and Chairman,
DTPC, Ernakulam for the renovation of the Manalppuram
Park and construction of Restaurant at Aluva and has
requested for Administrative Sanction for the project at an C
estimated cost of Rs.55, 72,432/- as detailed below.
1. Beautification of Manalppuram Park Rs.24,10,421/-
2. Construction of Restaurant Rs.31,62.011/- D
TOTAL Rs.55, 72.432/~
The Working Group that met on 29.04.2005
considered the proposal of the Director, Department of
Tourism and approved it. Sanction is therefore accorded E
for the Project for the renovation of Manalppuram Park and
construction of Restaurant at Aluva at an estimated cost
of Rs.55,72,432 /-(Rupees Fifty Five Lakhs Seventy Two
Thousand Four Hundred and Thirty two only) .
F
The expenditure onthis account will be met from the
head of account "3452-80-800-90(29)-Upgradation and
creation of infrastructure facilities at Tourist Centres {Plan)".
The work will be executed through DTPC, Ernakulam and
will be completed within a period of six months.
G
By Order of the Governor
D. Saraswathy Amma,
Deputy Secretary."
H
368 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 19. There is nothing in the language of G.O. dated
20.5.2005 from which it can be inferred that while approving
the proposal forwarded by the Director, Department of Tourism
for renovation and beautification of Manalpuram Park at an
estimated cost of Rs.55, 72,432/-, the State Government had
B amended G.O. dated 13.1.1978 or otherwise relaxed the
conditions embodied therein. The record also does not show
that the Department of Tourism had furnished a detailed'
comprehensive environmental impact statement for the project
so as to enable the Committee to make appropriate review and
c assessment. Therefore, it must be held that the execution of the
project including construction ofrestaurant is ex facie contrary
to the mandate ofG.O. dated 13.1.1978, which was issued by
the State in discharge of its Constitutional obligation under
Article 48-A. Unfortunately, the Division Bench of the High Court
D ignored this crucial issue and casually dismissed the writ
petition without examining the serious implications of the
construction of a restaurant on the land reclaimed by Aluva
Municipality from the river.
20. G.O. dated 13.1.1978 is illustrative of the State
E Government's commitment to protect and improve the
environment as envisaged under Article 48A. The object of this
G.O. is to ensure that no project costing more than Rs.10 lakhs
should be executed and implemented without a comprehensive
evaluation by an expert body which can assess possible impact
F of the project on the environment and ecology of the area
including water bodies, i.e., rivers, lakes etc. If the project had
been referred to the Environmental Planning and Co-ordination
Committee for review and assessment of environmental
implications then it would have certainly examined the issue
G relating to desirability and feasibility of constructing a restaurant,
the possible impact of such construction on the river bed and
the nearby bridge as also its impact on the people of the area.
By omitting to refer the project to the Committee, the District
Tourism Promotion Council and the Department of Tourism
H conveniently avoided scrutiny of the project in the light of the
ASSOCIATION FOR ENVIRONMENT PROTECTION v. 369
STATE OF KERALA [G.S. SINGHVI, J.]
parameters required to be kept in view for protection of A
environment of the area and the river. The subterfuge employed
by the District Promotion Council and the Department of
Tourism has certainly resulted in violation of the fundamental
right to life guaranteed to the people of the area under Article
21 of the Constitution and we do not find any justification to B
condone violation of the mandate of order dated 13.1.1978.
21. In the result, the appeal is allowed and the impugned
order is set aside. As a sequel to this, the writ petition filed by
the appellant is allowed and the respondents are directed to
demolish the structure raised for establishing a restaurant as C
part of renovation and beautification of Manalpuram Park at
Aluva. The needful be done within a period of three months from
today.
R.P. Appeal allowed. D
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