LAW FOR ALL

Periyar river - Environmental protection = “Doctrine of the Public Trust”. It was founded on 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 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. = 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 land by citing convenience of the public coming on Sivarathri festival as the cause. - When the District Promotion Council started 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 following assertions: a) Periyar river is a holy river called “Dakshin Ganga”, on the banks of which famous Sivarathri festival is conducted. 8 b) The river provides water to lakhs of people residing within the jurisdiction of 44 local bodies on its either side. c) In 1989, a study was conducted by an expert body 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 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. f) The construction of the building will adversely affect Marthanda Varma Bridge. g) The respondents have undertaken construction without conducting any environmental impact assessment and in violation of the provisions of 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 assessment of environmental impact as a condition precedent for execution of any project costing more than Rs.10,00,000/-. 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 hotel, as claimed by the appellant. The cryptic reasons recorded by the High Court for dismissing the writ petition are extracted below: 10 “From the facts as gathered above, it transpires that no hotel at all is being constructed in the river belt. The 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.” = 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 cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and 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.”= 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 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 assessment. Therefore, it must be held that the execution of 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 in discharge of its Constitutional obligation under Article 48-A. Unfortunately, the Division Bench of the High Court 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. G.O. dated 13.1.1978 is illustrative of the State 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 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 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 conveniently 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 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 condone violation of the mandate of order dated 13.1.1978. 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 part of renovation and beautification of Manalpuram Park at Aluva. The needful be done within a period of three months from today.