Supreme Court of India
THOMAS LAWRENCE versus THE STATE OF KERALA & ORS. on 29 October 2020
[2020] 9 S.C.R. 325
THOMAS LAWRENCE
v.
THE STATE OF KERALA & ORS.
(Civil Appeal No. 2535 of 2020)
OCTOBER 29, 2020
[R. F. NARIMAN, NAVIN SINHA ANDINDIRA BANERJEE, JJ.]
Kerala Conservation of Paddy Land and Wetland Act, 2008– Original application filed before National Green Tribunal (NGT)– Destruction of Wetlands and 10 acre Pond inside TechnoparkRegion, Thiruvananthapuram, Kerala alleged – Order was passeddirecting 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 –Open to the appellant-petitioner to challenge the order of theCollector in accordance with law – Wetlands (Conservation andManagement) Rules, 2010 – r.4 – Environmental Law.
Disposing of the matters, the Court
HELD: Given the fact that the Collector has passed an orderpursuant to the NGT’s order dated 19.12.2018, it is clear thatthe execution application filed before the NGT has becomeinfructuous. It is open to the petitioner to challenge the order ofthe Collector dated 30.04.2019 in accordance with law. If suchchallenge is made within a period of 8 weeks from today, thepetitioner’s challenge will not be dismissed solely on the groundof delay. [Para 5][329-B]
M. K. Balakrishnan v. Union of India (2017) 7 SCC810 (2) – referred to.
Case Law Reference
(2017) 7 SCC 810 (2)referred toPara 2
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2535of 2020.
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326SUPREME COURT REPORTS
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From the Judgment and Order dated 06.11.2019 of the NationalGreen Tribunal, New Delhi in Execution Application No. 39 of 2019 inOriginal Application no. 875 of 2018.
Ms. Anitha Shenoy, Vikas Singh, Pinaki Mishra, Sr. Advs.,Ms. Srishti Agnihotri, Ms. Meera Gopal, Ms. Sanjana Grace Thomas,BJishnu 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
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1. The present appeal arises out of an order of the National GreenTribunal, Principal Bench, New Delhi, dated 06.11.2019, in which theNGT states:
“In view of order dated 14.10.2019 in O.A. No. 71 of 2019,DSanjeev SJ, President, Environmental Protection andResearch Council v. State of Kerala, no separate order isnecessary in this matter as the issue raised can be gone into in thecourse of EIA study in the said matter.
The application is disposed of.”E2. Mrs. Anitha Shenoy, learned senior advocate, appearing onbehalf of the appellant/PIL-Petitioner states that the order dated14.10.2010 dealt with a completely different matter, namely, OriginalApplication No.71 of 2019, which was concerned with a challenge tothe environmental clearance granted to one Dragon Stone Reality PrivateLimited. This clearance was in respect of an area of 9.75 acres of theFVeli-AkkulamWetland. As against this, the present Execution ApplicationNo.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 orderdated 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 Pondinside the Technopark Region, Thiruvananthapuram, Kerala.Let the District Collector, Trivandrum look into the matter andtake appropriate action in accordance with law within one month.
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Copy of this order along with complaint be sent to the DistrictCollector, Trivandrum by e-mail for compliance.
Needless to say that order of National Green Tribunal is bindingas a decree of Court and non-compliance is actionable by way ofpunitive action including prosecution, in terms of the National GreenTribunal Act, 2010.
The application is disposed of.”
Learned counsel for the appellant through her written submissionsplaced reliance on reports of local authorities including the AgriculturalOfficer, Attipura and Village Officer, Attipura to argue that the land overwhich the construction was taking place was a wetland and that in viewof the Kerala Conservation of Paddy Land and Wetland Act, 2008, theconstruction would be illegal. She further placed reliance on severalorders of this Court, including the Order reported as M.K. Balakrishnanv. Union of India (2017) 7 SCC 810(2), to show that in view of theembargo on reclamation of wetlands under Rule 4 of the Wetlands(Conservation and Management) Rules, 2010, the action of the State inthe instant case would be illegal. She further argued that in view of thebar on reclamation of wetlands as described above, the order dated30.04.2019 passed by the Collector would not be “in accordance withlaw” as mentioned in the order of the NGT dated 19.12.2018 therebymaking the Execution Petition filed by the appellant maintainable.
3. This Court was approached as it has been alleged that theDistrict Collector has not taken action in accordance with the orderdated 19.12.2018 as a result of which it is necessary to set aside theNGT order and remand the matter for de novo hearing.
4. Shri Vikas Singh, learned senior advocate appearing on behalfof 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 anapplication (OA No.875/2018) based on a complaint received bye-mail from Sri. Thomas Lawrence, regarding mass destructionof 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 lookinto the matter and take appropriate action in accordance with A
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Alaw within one month. Revenue (P) Department as per G.O (MS)No. 40/2018/Rev dtd. 03.02.2018 accorded sanction forreclamation of 861.2 Ares of land in Survey No. 279, 280, 281,282, 290, 291, 292, 295, 296, 297, 353, 355, 358, 359 of AttipraVillage, Thiruvananthapuram Taluk for the III[rd ]phase Developmentof Technopark, Thiruvananthapuram as per the provision in SecB10 of Kerala Conservation of Paddy and Wetland (Amendment)Ordinance 2017. By virtue of G.O dated 03.02.2018, for the purposeof development of Technopark (third phase), necessary exemptionhas been granted by the Government, as contemplated under theKerala Conservation of Paddy Land and Wetland Act of 2008Cand the Ordinance of 2017 made thereunder, considering the sameas one falls under “public purpose”, as defined under Section 2(xiv) of the Act of 2008. Accordingly, 861.2 Ares of land wasreclaimed as per Section 10 of the Ordinance of 2017. Whilegranting exemption for the purpose of reclamation, as aforesaid,to the property scheduled therein necessary safeguards were alsoDdirected to be maintained for water conservation. In the abovecircumstances, no action whatsoever can be taken at the level ofDistrict Collector under Sections 11 and 13 of the Act of 2008.”
In addition, he pointed out that way back in 2003, these landswere covered by land acquisition notifications showing that they wereEpaddy land/converted paddy land and/or dry land and not wetland asalleged by the petitioner. Shri Pinaki Mishra, learned senioradvocate,appearing on behalf of Respondent Nos.7 and 9, showed us amap in which it is clear that the Aakulamlake was at a distance of 3 kmsfrom the impugned site. He also showed us on the map that TechnoparkFPhase II was already completed as was Technopark Phase I, TechnoparkPhase III being the present project. According to him, the petitioner hasmissed the bus and has knocked at the doors of the NGT after hugeconstructions had already been undertaken after all permissions had beenobtained including permissions under Section 10 of The Kerala Conservation of Paddy Land and Wetland Act, 2008. He further argued,Gplacing reliance on a response to an RTI application dated 07.10.2020,that the State Wetland Authority, Kerala had prepared a draft listcomprising of 40 wetlands in Kerala and that the land involved in thepresent case has not been identified as a wetland. He also pointed outthat the appellant not having challenged the order of the NGT datedH19.12.2018 or the order of the Collector dated 30.04.2019, the execution application filed in the present case would be infructuous and wastherefore rightly dismissed by the NGT vide the impugned order.
5. Given the fact that the Collector has passed an order pursuantto the NGT’s order dated 19.12.2018, it is clear that the executionapplication filed before the NGT has become infructuous. It is open tothe petitioner to challenge the order of the Collector dated 30.04.2019 inaccordance with law. If such challenge is made within a period of 8weeks from today, the petitioner’s challenge will not be dismissed solelyon the ground of delay.
Divya Pandey
Matters disposed of.
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