Kerala High Court Directs To Grant Police Protection To Adani Ports For Completion Of Vizhinjam Project

The Kerala High Court on Thursday allowed the petition for police protection to the employees and workmen of M/S Adani Vizhinjam Port Pvt Ltd., and its contracting company, Howe Engineering Construction, and also for free ingress and egress to the construction site. 

Justice Anu Sivaraman while allowing the petition, observed that there is 

"no doubt in my mind that the right to agitate or protest against any matter including the apathy or neglect of the Government cannot confer any right either on respondents 11 to 25 or any of the protesters to contend that they have a right to obstruct the activities which have due permissions or to trespass into the project site and cause damage to public property". 

It was added that in case of any violation of conditions in the Environmental Clearance, it had to be raised before the competent authorities in accordance with law.

Regarding the aspect of competing interests, it was stated by the Court that, 

"This Court has time and again considered the issue of competing interests in the matter of grant of police protection and has held that a right to protest can only mean a right to protest peacefully and there can be no right to obstruct the legally permitted project or activity in the guise of a protest whatever be the reason for the protest".

In the event of any failure to provide the necessary protection, the Court ordered that necessary instructions could be obtained in this regard from the Central Government. 

M/S Adani Vizhinjam Port Pvt Ltd. had started construction of the port from 05.12.2015, after being selected as the concessionaire for the Vizhinjam Seaport Project, which is a joint venture Project between the State and Central Governments. However, it was opposed by the fisherfolk community on the ground that a proper environmental impact assessment study ought to be carried out. Several demands were also raised by the community before the government.

It was in light of the ongoing protests due to which the Project had to be halted, that Adani Port and its contracting company, Howe Engineering Projects, had approached the High Court of Kerala. In the plea the petitioners sought police protection for the lives of its employees and the property on the construction site, as well as facilitation of free ingress and egress to the port site. 

On Monday, the Court had questioned whether the protesting fishermen could obstruct a Project which had all the requisite legal permissions from the government. It had been observed that, while the protests could be registered, it could not affect the Project. The Court had further observed that any complaints regarding the nature of the project and its particulars could be raised at the appropriate forum. On Tuesday, the Chief Minister of Kerala, Pinarayi Vijayan, had stated that an expert committee would be constituted by the government to address the concerns of the fishermen, although the government had met most of their demands. The committee would also study the geological and social impact of the project and submit its report within three months. However, it was staunchly stated that the work of the Project could not be stopped at such a crucial stage, since doing so would be illogical and unacceptable, considering the Project had the requisite permissions.

During the hearing on Wednesday, the Counsels for the petitioners brought the attention of the Court to the fact that the Project had started in 2015, and was presently 80% complete, and would have to be fully completed by 2023. During the oral arguments at the Court, it had been submitted by the Senior Counsel, Advocate S. Sreekumar on behalf of the petitioners that the construction of the Project was at its final stages, which has currently been brought to a standstill due to the agitation. It had also been submitted that the project had all the requisite clearances and was a prestigious joint venture between the State and Central Governments with 67% of the cost being borne by the State Government. In this light, it was brought to the attention of the Court that public money was at stake. It was submitted that this would show that obstruction of the project would be prejudicial to the larger public interest, as well. It was further submitted that the NGT had considered all the contentions of the public, and had given its approval, which was also affirmed by the Apex Court. Despite the Court order to maintain law and order in the area, and to see that the petitioners are granted free ingress and egress to the project site and enable to carry out the work in question, no such steps had been taken by the Police. Senior Counsel, Advocate G. Sreekumar further pointed out to the Court on behalf of the Petitioners that the agitators had also breached the barricades installed by the police and entered the project site. M/S Roshen D. Alexander, Advocate Tina Alex Thomas and Advocate Harimohan appeared on behalf of the petitioners. 

Advocate V.J. Mathew, appearing on behalf of Vizhinjam International Seaport Ltd., further submitted that the Project which costs an amount of Rs.7,700/- Crores is the only deep sea port of its magnitude in the country, and the protestors had resorted to taking law and order in their hands. 

The respondents herein were represented by the Government Pleader for Respondents 1, 3 - 10, Advocates V.J. Mathew, Vipin P. Varghese, Adarsh Mathew, Kevin Mathew George, Meera Elsa George, Merlin Mathew for Respondent 2; Advocate D. Sreekumar for respondents 13, 22, 23, and 25; Advocates James Kurian and Atul Tom for Respondents 14 and 24, and the Assistant Solicitor General of India, S. Manu, for Respondents 26 - 28. 

The State Attorney contended on behalf of the State Government that steps were being taken by the Government to address the grievances of the local residents of Vizhinjam. It was further contended by the counsels on behalf of the respondents that writ petitions are not maintainable since the prayers raised are vague and that in the case of competing interests, the larger public interest is to be considered. It was further pointed out that while granting the permission, the NGT had given certain stipulations, which were blatantly violated. A judicial commission which had been appointed to look into the same had also specifically found that the construction of the port was causing sea erosion in the neighbouring areas. It was further submitted that the fisherfolk in the area were forced to live in animal - like inhuman conditions, and their very right to live with human dignity was being denied by the State authorities. Appointment of an Amicus Curiae was also sought for on behalf of the respondents in order to ascertain whether the conditions provided in the Environmental Clearance as well as the order of the National Green Tribunal have been complied with. Additionally, the ASGI submitted that in case the State was unable to maintain law and order situation around the Project area, the Central Government ought to be informed about the same, and aid from the Centre ought to be sought by deploying its paramilitary forces for the maintenance of law and order. 

The Court in this light, noted that if the conditions stipulated in the NGT order were not complied with, the residents of the locality had the right to raise their contentions before the appropriate authorities and to seek redressal of their grievances in accordance with law. It was further added that the residents of the locality could also resort to peaceful protests to bring their complaints against the project before the Government. However, the Court emphasized that in the instant case, the only aspect that required consideration was regarding the breach of peace and illegal obstruction by the respondents, and not that of the validity of the legal permissions granted to the Project. 

"The respondents cannot be heard to contend that they or any of the protesters have the right to violate the law or create a situation where the project proponent is disabled from going forward with the project".

It was in this light that the Court granted the police protection to the petitioners, while adding that the protests could go on peacefully, without causing any obstruction and without any trespass being permitted into the project area.

Case Title: Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors. and M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors. 

Citation: 2022 LiveLaw Ker 466

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