First Case Ever To Be Live Telecasted on Youtube Decided By Karnataka High Court

The Karnataka High Court has held that the consent for establishment dated 1st July, 2020, granted by the Karnataka State Pollution Control Board (KSPCB), for expansion of the existing Karwar Port at Baithkol village in Karwar taluk, Uttara Kannada district is illegal. Thereby, High Court has restrained the state from carrying out the expansion work until fresh consent for establishment is granted by the pollution control board.

A division bench of Chief Justice Abhay Oka and Justice Suraj Govindaraj passed the order while hearing the petitions filed by Baithkol Bandharu Nirashrithara Yantrikrut Dhoni Meenugarara Sahakara Sangha Niyamitha and Uttara Kannada District Fishermen Association Forum.This was the first case in which proceedings were Live Telecast on the YouTube Channel of the High Court.

The court has allowed KSPCB to decide the applications made for grant of consent for establishment as per the undertaking of the board given on June 15, to withdraw the consent granted on July 1, 2020 and to redo the entire exercise afresh right from the stage of inspection, in accordance with law.

The court  has said  that "appropriate decision shall be taken on the applications preferably within a period of one month from the date on which this judgment is uploaded on the official website of this Court."

It also added with regards to the case that,

"As and when the consent for establishment is granted, the Port Authority will have to strictly adhere to the conditions subject to which the consent is granted. The project can be made operational only after consent to operate is granted by KSPCB. Therefore, it cannot be said that the project subject matter of these petitions is bad in law due to violation of the laws relating to the environment."

The court also directed the State of Karnataka and the Director of Ports and Inland Water, Karwar Port, to ensure that all the terms and conditions of Environmental Clearance dated 23rd January, 2019, issued by the State Level Environment Impact Assessment Authority (SEIAA) are scrupulously followed and implemented. It said "needless to add that unless and until the consent for establishment is granted to the project by KSPCB, the work of the 2nd stage Development of Karwar Port cannot be commenced."

The court also directed the State Government to comply with condition No.32 incorporated in the specific conditions for the Environmental Clearance of submitting a copy of Marine and Riparian Biodiversity Management Plan duly validated by the State Biodiversity Board before the commencement of work.

Background of the Case

On 23rd January 2019, the State Level Environment Impact Assessment Authority (SEIAA) accorded Environmental Clearance for the proposed 2nd stage Development of Commercial Karwar Port ('the 2nd stage Development'). Various conditions were incorporated in the Environmental Clearance under the headings 'specific conditions' and 'general conditions'.

The petitioner has challenged the Environmental Clearance and the consent granted by KSPCB. The challenge is based on violation of fundamental rights guaranteed under sub-clause (d) of clause (1) of Article 19 and sub-clause (g) of clause (1) of Article 19 as well as Article 21 of the Constitution of India. Violations of Articles 48-A, 51-A (g) and 300A have also been alleged.

Petitioner Submissions:

Advocate Murthy Naik appearing for the petitioner submitted that SEIAA had no jurisdiction to grant Environmental Clearance for the project. Referring to the EIA notification dated 14th September, 2006 issued by the Ministry of Environment and Forests, Government of India, he contended that,

"In view of clause-3 of the said notification, the Ministry of Environment and Forests of the Central Government is the only competent authority to grant prior Environmental Clearance."

Further, he also said that,

"As per the said CRZ notification dated 6th January, 2011, Karwar has been identified as ecologically sensitive area and hence, it will have to be treated as a Notified Eco-sensitive area within the meaning of general condition (GC) as notified in the EIA notification dated 14th September, 2006."

In relation to the consent for establishment, Naik submitted that the said consent was not granted by KSPCB but the same was issued by the Consent Committee which has no power or jurisdiction to do so. He submitted that the consent for establishment was granted without carrying out proper inspection. It was also argued that 'as a result of the project of the expansion of the Port, the entire Rabindranath Tagore beach will be destroyed.' He submitted that this is the only beach available to the citizens of Karwar, as most of the beaches in Karwar and Ankola taluks have been taken over for the projects of the naval base.

Advocate Smaran Shetty appearing for second petitioner Uttara Kannada District Fishermen Association Forum submitted that the proposed project will definitely violate the rights of the petitioner under sub-clause (g) of clause (1) of Article 19 of the Constitution of India.

State's Submissions:

Additional Advocate General said there is absolutely no material placed on record to show that fishing activities of the fishermen community will be adversely affected on account of the proposed project. He pointed out the photographs and assured the Court that the jetty presently used by the fishermen community will remain unaffected. He also pointed out that the entry of boats of the fishermen will be allowed through approach channels even after the 2nd stage Development of Karwar Port is completed. He submitted that CRZ notification dated 18th January, 2019 is not at all applicable.

Court Findings:

The court noted that while dealing with the issue of legality of the consent, 'a writ court is concerned with the decision making process rather than the merits of the decision itself.' The Environmental Clearance was granted by SEIAA on 23rd January, 2019. Condition No. 23 in the said clearance incorporates a requirement of obtaining consent to establish/ operate from KSPCB both under the Water Act as well as the Air Act.

The court concluded that the provisions of sub-section (3) of Section-25 of the Water Act and sub-section (3) of Section-21 of the Air Act specifically provide for making an inquiry on the applications made for grant of consent, as per the procedure prescribed.

The bench went through the process adopted by the authority and observed that

"This Court has no hesitation to hold that the entire decision making process, by which a decision was taken to reiterate and confirm the earlier consent dated 1st July, 2020 with "certain modified conditions" was completely vitiated due to non-application of mind and non consideration of the relevant factors. Moreover, the consent was reiterated subject to "certain modified conditions" without even considering what could be the modified conditions."

Accordingly the court opined that ;

"The very object of enacting the Water Act and the Air Act was prevention and control of Water and Air pollution respectively. The very purpose of establishment of the State Pollution Control Board was to achieve the object of prevention and control of Water and Air pollution. Thus, KSPCB is required to act as a watchdog against pollution of both Air and Water. But in facts of the present case, we are constrained to observe that KSPCB has acted in a very casual manner by ignoring the very object of the Water and the Air Act. KSPCB is supposed to be a body of experts. But, it has acted in such a manner that the very object of the setting up of the Board is frustrated. Apart from the shocking manner in which KSPCB dealt with the applications made by the Port Officer for grant of consent for establishment, the entire process is vitiated due to non-application of mind, non-consideration of the relevant factors and the illegality in the decision making process."

"Karwar is not declared as an Eco-sensitive area."

On going through the records placed before it, the court said that there are no documents placed on record to show that in exercise of the power under Section 3 of the said Act of 1986 (Environment (Protection) Act), Karwar has been declared as an Eco-sensitive area, or that the 2nd Stage Development Project will come up within the distance of 10 Kms from eco-sensitive areas notified under Section 3 of the said Act of 1986. Hence, on the basis of modified General Conditions (Of 2014 EIA Notification), the court found it impossible to hold that the project of 2nd Stage Development will fall in category 'A'.

"No Violation of Fundamental Rights."

On going through the material placed by the petitioner, the court expressed its findings on the interpretation of fundamental rights involved:

"Merely because a part of the beach will be converted into a port, the fundamental right of an individual guaranteed under clause (d) of sub-clause (1) of Article 19 will not be affected at all. The right to move freely throughout the territory of India does not amount to the right to enter each and every part of the territory forming a part of the territory of India. Therefore, the challenge based on violation of fundamental rights guaranteed either under sub-clause (d) of clause (1) of Article 19 or under sub-clause (g) of clause (1) of Article 19 or Article 21 of the Constitution of India cannot be upheld. As the loss of livelihood of Fishermen is not established, even violation of Article 300-A is not established."