THOMAS LAWRENCEversusTHE STATE OF KERALA & ORS.

                        [2020] 9 S.C.R. 325                           325


                     THOMAS LAWRENCE                                  A
                                v.
                THE STATE OF KERALA & ORS.
                  (Civil Appeal No. 2535 of 2020)
                       OCTOBER 29, 2020                               B
            [R. F. NARIMAN, NAVIN SINHA AND
                   INDIRA BANERJEE, JJ.]
       Kerala Conservation of Paddy Land and Wetland Act, 2008
– Original application filed before National Green Tribunal (NGT)
                                                                      C
– Destruction of Wetlands and 10 acre Pond inside Technopark
Region, Thiruvananthapuram, Kerala alleged – Order was passed
directing District Collector, Thiruvananthapuram to take action –
Present execution application filed – Dismissed – On appeal,
held:Collector has passed an order pursuant to NGT’s order – Thus,
the execution application filed before NGT became infructuous –       D
Open to the appellant-petitioner to challenge the order of the
Collector in accordance with law – Wetlands (Conservation and
Management) Rules, 2010 – r.4 – Environmental Law.
      Disposing of the matters, the Court
       HELD: Given the fact that the Collector has passed an order    E
pursuant to the NGT’s order dated 19.12.2018, it is clear that
the execution application filed before the NGT has become
infructuous. It is open to the petitioner to challenge the order of
the Collector dated 30.04.2019 in accordance with law. If such
challenge is made within a period of 8 weeks from today, the          F
petitioner’s challenge will not be dismissed solely on the ground
of delay. [Para 5][329-B]
      M. K. Balakrishnan v. Union of India (2017) 7 SCC
      810 (2) – referred to.
                       Case Law Reference                             G

(2017) 7 SCC 810 (2)          referred to             Para 2
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2535
of 2020.
                                                                      H
                               325
326            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A             From the Judgment and Order dated 06.11.2019 of the National
      Green Tribunal, New Delhi in Execution Application No. 39 of 2019 in
      Original Application no. 875 of 2018.
            Ms. Anitha Shenoy, Vikas Singh, Pinaki Mishra, Sr. Advs.,
      Ms. Srishti Agnihotri, Ms. Meera Gopal, Ms. Sanjana Grace Thomas,
B     Jishnu M L, Ms. Priyanka Prakash, Ms. Beena Prakash, G. Prakash,
      Ms. Anindita Roy Chowdhary, Pradyumna Sharma, Paresh B. Lal,
      Ms. Anannya Ghosh, Sajith. P, Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            R. F. NARIMAN, J.
C
            1. The present appeal arises out of an order of the National Green
      Tribunal, Principal Bench, New Delhi, dated 06.11.2019, in which the
      NGT states:
            “In view of order dated 14.10.2019 in O.A. No. 71 of 2019,
D           Sanjeev SJ, President, Environmental Protection and
            Research Council v. State of Kerala, no separate order is
            necessary in this matter as the issue raised can be gone into in the
            course of EIA study in the said matter.
            The application is disposed of.”
E            2. Mrs. Anitha Shenoy, learned senior advocate, appearing on
      behalf of the appellant/PIL-Petitioner states that the order dated
      14.10.2010 dealt with a completely different matter, namely, Original
      Application No.71 of 2019, which was concerned with a challenge to
      the environmental clearance granted to one Dragon Stone Reality Private
      Limited. This clearance was in respect of an area of 9.75 acres of the
F
      Veli-AkkulamWetland. As against this, the present Execution Application
      No.39 of 2019 arises out of an Original Application No.875 of 2018,
      which is in respect of violations with regard to 19.73 acres of the Veli-
      AkkulamWetland. Thus, the present case concerns itself with an order
      dated 19.12.2018 of the NGT which reads as follows:
G           “Allegation in this letter, which has been treated as an application,
            is that there is mass destruction of Wetlands and 10 acre Pond
            inside the Technopark Region, Thiruvananthapuram, Kerala.
            Let the District Collector, Trivandrum look into the matter and
            take appropriate action in accordance with law within one month.
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     THOMAS LAWRENCE v. STATE OF KERALA & ORS.                                327
                [R. F. NARIMAN, J.]

      Copy of this order along with complaint be sent to the District         A
      Collector, Trivandrum by e-mail for compliance.
      Needless to say that order of National Green Tribunal is binding
      as a decree of Court and non-compliance is actionable by way of
      punitive action including prosecution, in terms of the National Green
      Tribunal Act, 2010.                                                     B
      The application is disposed of.”
       Learned counsel for the appellant through her written submissions
placed reliance on reports of local authorities including the Agricultural
Officer, Attipura and Village Officer, Attipura to argue that the land over
which the construction was taking place was a wetland and that in view        C
of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the
construction would be illegal. She further placed reliance on several
orders of this Court, including the Order reported as M.K. Balakrishnan
v. Union of India (2017) 7 SCC 810(2), to show that in view of the
embargo on reclamation of wetlands under Rule 4 of the Wetlands               D
(Conservation and Management) Rules, 2010, the action of the State in
the instant case would be illegal. She further argued that in view of the
bar on reclamation of wetlands as described above, the order dated
30.04.2019 passed by the Collector would not be “in accordance with
law” as mentioned in the order of the NGT dated 19.12.2018 thereby
making the Execution Petition filed by the appellant maintainable.            E

       3. This Court was approached as it has been alleged that the
District Collector has not taken action in accordance with the order
dated 19.12.2018 as a result of which it is necessary to set aside the
NGT order and remand the matter for de novo hearing.
                                                                              F
       4. Shri Vikas Singh, learned senior advocate appearing on behalf
of the State of Kerala has pointed out that by an order dated 30.04.2019,
the District Collector has held as follows:
      “The Hon’ble National Green Tribunal, New Delhi registered an
      application (OA No.875/2018) based on a complaint received by
                                                                              G
      e-mail from Sri. Thomas Lawrence, regarding mass destruction
      of wetlands and 10 Acre ponds inside the Technopark Campus,
      Thiruvananthapuram. The Hon’ble Tribunal vide order dtd.
      19.12.2018 directed District Collector, Thiruvananthapuram to look
      into the matter and take appropriate action in accordance with
                                                                              H
328            SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A           law within one month. Revenue (P) Department as per G.O (MS)
            No. 40/2018/Rev dtd. 03.02.2018 accorded sanction for
            reclamation of 861.2 Ares of land in Survey No. 279, 280, 281,
            282, 290, 291, 292, 295, 296, 297, 353, 355, 358, 359 of Attipra
            Village, Thiruvananthapuram Taluk for the IIIrd phase Development
            of Technopark, Thiruvananthapuram as per the provision in Sec
B
            10 of Kerala Conservation of Paddy and Wetland (Amendment)
            Ordinance 2017. By virtue of G.O dated 03.02.2018, for the purpose
            of development of Technopark (third phase), necessary exemption
            has been granted by the Government, as contemplated under the
            Kerala Conservation of Paddy Land and Wetland Act of 2008
C           and the Ordinance of 2017 made thereunder, considering the same
            as one falls under “public purpose”, as defined under Section 2
            (xiv) of the Act of 2008. Accordingly, 861.2 Ares of land was
            reclaimed as per Section 10 of the Ordinance of 2017. While
            granting exemption for the purpose of reclamation, as aforesaid,
            to the property scheduled therein necessary safeguards were also
D
            directed to be maintained for water conservation. In the above
            circumstances, no action whatsoever can be taken at the level of
            District Collector under Sections 11 and 13 of the Act of 2008.”
             In addition, he pointed out that way back in 2003, these lands
      were covered by land acquisition notifications showing that they were
E     paddy land/converted paddy land and/or dry land and not wetland as
      alleged by the petitioner. Shri Pinaki Mishra, learned senior
      advocate,appearing on behalf of Respondent Nos.7 and 9, showed us a
      map in which it is clear that the Aakulamlake was at a distance of 3 kms
      from the impugned site. He also showed us on the map that Technopark
F     Phase II was already completed as was Technopark Phase I, Technopark
      Phase III being the present project. According to him, the petitioner has
      missed the bus and has knocked at the doors of the NGT after huge
      constructions had already been undertaken after all permissions had been
      obtained including permissions under Section 10 of The Kerala
      Conservation of Paddy Land and Wetland Act, 2008. He further argued,
G     placing reliance on a response to an RTI application dated 07.10.2020,
      that the State Wetland Authority, Kerala had prepared a draft list
      comprising of 40 wetlands in Kerala and that the land involved in the
      present case has not been identified as a wetland. He also pointed out
      that the appellant not having challenged the order of the NGT dated
H     19.12.2018 or the order of the Collector dated 30.04.2019, the execution
     THOMAS LAWRENCE v. STATE OF KERALA & ORS.                                  329
                [R. F. NARIMAN, J.]

application filed in the present case would be infructuous and was              A
therefore rightly dismissed by the NGT vide the impugned order.
       5. Given the fact that the Collector has passed an order pursuant
to the NGT’s order dated 19.12.2018, it is clear that the execution
application filed before the NGT has become infructuous. It is open to
the petitioner to challenge the order of the Collector dated 30.04.2019 in      B
accordance with law. If such challenge is made within a period of 8
weeks from today, the petitioner’s challenge will not be dismissed solely
on the ground of delay.


Divya Pandey                                             Matters disposed of.   C




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