The Kerala High Court dismissed a PIL and a connected Appeal, seeking removal of a sandbar from the Thottappally Spillway region in Alappuzha district, besides segregation of atomic mineral from the sand so removed.
The fundamental issue raised by the appellant and the petitioners was that in the guise of removing the sand bar for flood management and mitigation invoking the Disaster Management Act 2005, mining was being carried out without securing adequate clearances from the respective statutory authorities.
The petitioner challenged the judgement of a Single Judge dated 17.11.2021 in whereby the Single Judge dismissed the petition basically holding that there was no sand mining taking place at Thottappally Spillway consequent to removal of the sandbar, but the sandbar was removed invoking the powers under the Disaster Management Act, 2005, in order to protect the people of Kuttanad area from flooding.
It was also found that Section 72 of the 2005 Act has an overriding effect over the provisions of other laws, since it was intended to protect the very life of the citizens, without which the words right, liberty, freedom and even the word Constitution will have no meaning.
The petitioner claimed that he was the President of a registered trade union, constituted for the protection and welfare of fishermen community in Kerala. He sought setting aside the resolution passed by the Purakkad Grama Panchayat dated November 9, 2021, whereby the Panchayat had decided to cancel the stop memo dated June 1, 2020 issued by the Secretary to the Kerala Minerals and Metals Ltd, requiring to stop mining of sand from Thottappally Pozhimugham (river mouth) and for a further writ of mandamus to restrain Private Limited from functioning the atomic minerals separation plant installed in the Coastal Regulation Zone (CRZ) prohibited zone, without getting clearance and sanction from the CRZ authorities, as contemplated under the Coastal Regulation Zone notification, 2011.
The Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly noted that the 2005 Act provides for effective management of disasters and for matters connected therewith or incidental thereto.
The Government has decided to enact a law on disaster management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of disaster management plans, ensuring measures by various wings of government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.
Therefore, the government really thought that the enactment will facilitate effective steps for the mitigation of disasters, prepare for and coordinate effective response to disasters, as also matters connected therewith or incidental thereto.
Among other powers conferred under sub-section (2) of Section 30 of Act 2005, the District Authority is obligated to prepare a disaster management plan including district response plan for the District; coordinate and monitor the implementation of the National Policy, State Policy, National Plan, State Plan and District Plan; ensure that the areas in the District vulnerable to disasters are identified and measures for the prevention of disasters and the mitigation of its effects are undertaken by the Departments of the Government at the District level as well as by the Local Authorities; ensure that the guidelines for prevention of disasters, mitigation of its effects, preparedness and response measures as laid down by the National Authority and the State Authority are followed by all Departments of the Government at the District Level and the Local Authorities in the District; give directions to different authorities at the District level and Local Authorities to take such other measures for the prevention or mitigation of disasters as may be necessary; lay down guidelines for prevention of disaster management plans by the Department of the Government at the District level and Local Authorities in the District.
In view of the Court, these are all policy decisions taken by the State Government on the basis of various reports / studies conducted and discussions with experts and specialised agencies.
“When such a policy decision is taken by the State Government by understanding the situation and to save the life of the people, we do not think a recommendation or suggestion made by some of the citizens would have precedence over the efforts taken by the State Government in order to laid down a policy with respect to the flood prevention mitigation and disaster management,” noted the Court.
It said the State Government and the District Disaster Management Authority by the impugned order and agreement decided to remove the sandbar so as to avert the flood situation in future by ensuring easy and free flow of water; and in that process, the removal of sandbar was only incidental in nature in order to translate the true intention and spirit of the Disaster Management Act, 2005, the National Guidelines, State Plans and District Plans.
The Court observed, “It is clear to the Court that the said work is entrusted with the public sector undertaking; and we also do not find any allegations of mala fides concerning the entrustment. Therein also, we are of the clear opinion that the spiraling work is done by the public sector undertaking in order to remove the atomic mineral from the sand removed from the sandbar at the Thottappally Spillway region.
“Therefore, the Bench is of the view that it is with the primary intention of protecting the public interest of saving humans from flood situations alone the State Government undertakes the incidental activity of removing the sand bar through public sector undertakings. In this regard, the Court is reminded of the duty of the state to protect the life and liberty of the citizens as envisioned under Article 21 of the Constitution of India.
“Article 38 (1) of part 1V of the Constitution clarified that the state shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political are prevalent. Therefore, there can be no doubt that being a welfare state, it is duty-bound under the constitution to protect the interests and well-being of its citizens without fail; without which the other fundamental rights guaranteed under part 111 of the Constitution would be meaningless and ineffective,” it added.