Vizhinjam Port : Kerala High Court Quashes Govt Order Forming Expert Committee To Examine Coastal Erosion

The Court has also directed the State Government to constitute a fresh and independent Expert Committee to examine the allegation of coastal erosion caused by the Vizhinjam Port.

Justice Harisankar V Menon issued the directions in a writ petition instituted by the residents of of fishing villages situated within 20 kilometres north of Vizhinjam, who alleged that the construction of the seaport, particularly its breakwaters, had resulted in substantial coastal erosion on the northern side and accretion on the southern side.

The petitioners approached the High Court contending that the construction activities associated with the Vizhinjam Seaport had severely affected the northern coastline, resulting in erosion, damage to residential properties and loss of traditional livelihoods.

They alleged that several residents had either lost their houses or suffered extensive damage to their properties, creating what they described as an existential crisis for fishing communities.

The petitioners primarily challenged the Expert Committee constituted by the State Government through Government Order dated October 6, 2022, issued pursuant to directions of the National Green Tribunal (NGT).

The committee, chaired by former Additional Director of the Central Water and Power Research Station (CWPRS), Pune, M.D. Kudale, was tasked with examining whether coastal erosion had occurred as a consequence of the Vizhinjam port construction and identifying remedial measures.

The petitioners alleged that the committee's members were affected by conflicts of interest arising from their previous professional associations with the project and entities connected with its implementation.

They sought the constitution of a fresh committee comprising independent experts under the supervision of the High Court.

Appearing for the petitioners, Advocate Prashant Bhushan argued that the constitution of the Kudale Committee was fundamentally flawed.

The petitioners contended the earlier involvement of M.D. Kudale in the project raised serious concerns about his independence while subsequently examining the environmental consequences of the same project.

A further contention concerned an apparent inconsistency between Kudale's earlier academic position and the findings of the committee he subsequently chaired.

The petitioners relied on his 2010 research article, titled "Impact of Port Development on the Coastline and the Need for Protection", published in the Indian Journal of Geo-Marine Sciences.

In the article, Kudale had observed the main impact of the port development is accumulation on the updrift side of the longshore drift and erosion of the downdrift side.

The petitioners argued that the findings of the subsequent committee report were contrary to this earlier opinion.

Another committee member, Dr. P.V. Chandramohan, was alleged to have been associated with Navayuga Engineering Company Limited as its President (Technical), a company stated to have business connections involving Adani Enterprises.

The petitioners also questioned the inclusion of Dr. Riji K. John, who was the Vice Chancellor of Kerala University of Fisheries and Ocean Studies (KUFOS) whose appointment was quashed by the Court.

They also pointed out that the committee had conducted only one site inspection, on May 23, 2023, followed by meetings with local residents on May 24, 2023, before preparing its final report.

The State Government contended that the coastal erosion was attributable to high wave activity and cyclonic conditions along the western coast rather than the construction of the seaport.

The State also argued that the Vizhinjam project was situated between two rocky promontories, resulting in minimal longshore sediment transport.

It further submitted that rehabilitation schemes had been extended to affected residents and that several petitioners had already received benefits under those schemes.

The sixth respondent, Vizhinjam International Seaport Limited, maintained that the project was of strategic national importance and had secured all necessary statutory approvals.

It was also argued that the environmental clearance and Coastal Regulation Zone (CRZ) clearance had already been upheld by the NGT and that the present writ petition sought to reopen issues that had attained finality.

The seventh respondent, the project concessionaire, similarly contended that extensive environmental studies had preceded the grant of statutory clearances.

The respondents additionally raised the objection of delay and laches, pointing out that the petitioners claimed to have experienced coastal erosion since 2016 but instituted the writ petition only in 2022.

The High Court rejected the objection regarding delay and laches.

It observed that the State Government itself had issued the Government Order dated October 6, 2022, constituting an Expert Committee to examine allegations of coastal erosion arising from the seaport construction.

The Court noted that the writ petition had been instituted in connection with the constitution of this very committee and the proceedings arising from it.

“This Court is of the opinion that in the light of the Government Order at Ext.P11 issued as above, the allegation of delay and laches raised by the respondents is only to be repelled.” Court noted.

Before examining the challenge to the committee, the Court referred to the principles laid down by the Supreme Court in Union of India v. Kushala Shetty [(2011) 12 SCC 69], and National High Speed Rail Corporation Limited v. Montecarlo Limited, [(2022) 6 SCC 401].

The Court reiterated that judicial review in matters involving major infrastructure projects is limited, particularly where technical expertise and larger public interest are involved.

However, it clarified that the present proceedings did not require the Court to interfere with the implementation of the Vizhinjam project.

The petitioners had expressly stated that they were not seeking a stay of the ongoing construction activities.

Accordingly, the Court confined its consideration to the legality of the constitution of the Expert Committee under the Government Order dated October 6, 2022, and the validity of the report submitted by it.

The Court relied on the Supreme Court's decision in N.K. Bajpai v. Union of India, [(2012) 4 SCC 653], which examined the importance of eliminating the possibility of conflicts between personal interests and official duties.

The Court also referred to A.K. Kraipak v. Union of India, [(1969) 2 SCC 262], wherein the Supreme Court emphasised that the real question is whether reasonable grounds exist to believe that a person was likely to have been biased.

The High Court found considerable substance in the petitioners' allegations concerning M.D. Kudale. The Court noted that his previous engagement as an expert member of the Technical Sub-Committee for the development of Vizhinjam Seaport was not disputed by the respondents.

“As already noticed, Sri.Kudale is stated to have been working as an expert member of the sub committee constituted for the development of Vizhinjam Seaport. If, as a matter of fact, he was so engaged, this Court is of the opinion that inclusion of Sri.Kudale in the Committee constituted pursuant to Ext.P11 Government Order ought to have been avoided.” the Court noted.

The Court further considered the petitioners' reliance on Kudale's 2010 research publication concerning the impact of port development on coastlines.

The article had recognised that the construction of breakwaters and dredging of navigation channels could interfere with longshore littoral drift, potentially resulting in accumulation on one side and erosion on the other.

The Court noted that the position reflected in the committee's final report appeared to be in stark contrast to Kudale's earlier published opinion.

However, the Court clarified that it was not called upon to determine the scientific correctness or otherwise of the committee's ultimate findings.

“It is in stark contrast of the afore opinion, that the report of the Committee constituted pursuant to Ext.P11 Government Order has stated otherwise. Though this Court is not called upon to consider the acceptability or otherwise of the findings contained in the ultimate report of the Committee constituted pursuant to Ext.P11, this Court has made reference to the opinion of Sri.Kudale as above, contained in Ext.P5(a) only in the light of the uncontroverted allegation of conflict of interest raised by the petitioners herein.” Court observed.

With respect to Dr. Chandramohan, the Court also took note of the allegations concerning his professional association with a company having connections with the project concessionaire.

The Court observed that the relevant allegations had not been effectively denied by respondents 6 and 7, although the sixth respondent had attempted to explain the circumstances.

At the same time, the Court declined to interfere with the inclusion of Dr. Riji K. John, finding that the mere fact that his appointment as Vice-Chancellor had been quashed did not establish his disqualification from serving on the Expert Committee.

The respondents had also relied on another committee constituted pursuant to directions issued by the NGT, which was entrusted with monitoring shoreline changes and submitting periodic reports.

The State argued that the existence of this monitoring mechanism made it unnecessary to rely on the report of the committee constituted under the October 6, 2022 Government Order.

The petitioners, however, contended that the NGT-appointed committee was merely examining and vetting reports prepared by agencies engaged by the project concessionaire.

The High Court noted that the State Government had itself constituted the committee under the Government Order dated October 6, 2022, specifically to examine allegations of coastal erosion.

Having constituted such a committee, the Government could not subsequently contend that its report could simply be ignored on the ground that another monitoring committee had been constituted pursuant to the NGT's directions.

The Court therefore rejected the argument that the existence of the NGT-appointed committee justified overlooking the defects in the constitution of the State Government's Expert Committee.

The Court thus found that the previous professional involvement of certain members with the project and the circumstances surrounding the committee's functioning raised sufficient concerns regarding its independence.

It also considered the limited nature of the committee's site inspection and the circumstances surrounding the preparation of its final report.

The High Court thus allowed the writ petition and declared the Constitution of the Committee to be flawed.

It further noted that the final report submitted by the committee so constituted shall not be acted upon.

The State Government was directed to constitute an independent Expert Committee to undertake the studies contemplated under the October 6, 2022 Government Order, ensuring that the proposed members have no conflict of interest.

The Court further observed that the Government would be required to constitute the fresh committee after taking into account the observations in the judgment and the views of the stakeholders concerned.

Counsel for Petitioners: Prasanth Bhushan, Ajit Joy, Sayujya Radhakrishnan, Aneesh James, Prasanth Bhushan

Counsel for Respondents: V.J. Mathew (Sr.), Vipin P. Varghese (SC - Vizhinjam International Seaport), Roshen D. Alexander, N. Manoj Kumar (State Attorney), K.R. Ranjith, Adarsh Mathew, Kevin Mathew George, Meera Elsa George, Merlin Mathew, Tina Alex Thomas, Harimohan, K. S. Bharathan, Anoop V. Nair (State Attorney)