Kerala Independent Farmers ... vs The Union Of India
2023 Latest Caselaw 2700 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
                    WP(C) NO. 15989 OF 2022
PETITIONER/S:

           KERALA INDEPENDENT FARMERS ASSOCIATION (KIFA)
           5/518, NIRANATH BUILDING, THALAYAD P.O,
           UNNIKULAM, KOZHIKODE- 673 574, REPRESENTED BY ITS
           CHAIRMAN SRI. ALEX OZHUKAYIL CHANDY FRANCIS, AGED
           41 YEARS, S/O. CHANDY FRANCIS, OZHUKAYIL HOUSE,
           KARIYATHUMPARA, KALLANODE P.O, KOZHIKODE, PIN 673
           615.
           BY ADVS.
           ALEX.M.SCARIA
           A.J.RIYAS
           SARITHA THOMAS
           ALEN J. CHERUVIL


RESPONDENT/S:

    1      THE UNION OF INDIA,
           REPRESENTED BY ITS SECRETARY, MINISTRY OF
           ENVIRONMENT, FOREST AND CLIMATE CHANGE, NEW DELHI
           110 001.
    2      THE STATE OF KERALA,
           REPRESENTED BY ITS PRINCIPAL SECRETARY TO
           DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695
           001.
OTHER PRESENT:

           JAISHANKER V NAIR CGC,
           TEKCHAND V., SR GP


     THIS WRIT PETITION      (CIVIL) HAVING COME UP       FOR
ADMISSION ON 01.03.2023,     THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 15989 of 2022
                                      -2-




                              JUDGMENT

S. Manikumar, C. J.

Considering the prayers and the grounds raised, on 08.02.2023,

we passed the following order:-

"Kerala Independent Farmers Association has filed instant Public Interest Litigation seeking following relief:-

"Issue a Writ of Mandamus or any other Writ, Order or Direction commanding and compelling the 1st respondent to cause publication of Exhibit-P2 notification in Malayalam and Tamil languages with local circulation of the contents thereof by appropriate means either by way of publication in local vernacular dailies and also by granting further time therefrom and also from other means of publication for filing objections and suggestions to Exhibit-P2."

2. Grounds raised in support of prayer sought for, are as hereunder:-

"GROUNDS:

A. Rule 5 (3) of the Environmental Protection Rules, 1986 reads as follows:

(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in W. P. (C) No. 15989 of 2022

such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area.

(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.

(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may 10 (within one hundred and 11 (eighty) days from such day of publication) impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area.

B. The purpose of publication of the proposal for imposing prohibition, restriction and conditions in respect of an area for environmental protection is to enable the persons who would be affected by such proposal to submit their objections and suggestions in respect of that proposal. It is worthwhile to note that conjunctive preposition 'and' is the purpose of causing notification in respect of the proposal covered by Rule W. P. (C) No. 15989 of 2022

5 of the Environmental Protection Rules, 1986. Thereby it could be seen that the notification must be in the official gazette and in such other manner to give notice is important and the requirement that there should be notification other than by official gazette notification for making the intention to impose prohibition. restriction and conditions valid.

C. In this case rather than mere publication in official gazette that too only in English and Hindi languages which are not familiar to the area which is covered by Exhibit-P2 notification is unjustified. The procedurat infirmities in the Exhibit P2 are to deprive the constitutional rights of the public who would be affected by the Exhibit P2.

D. The people of the area covered by Exhibit-P2 notification merely used Malayalam or Tamil as it's a border are of State of Kerala and State of Tamil Nadu. Therefore there must be publication of the Exhibit-P2 notification in Malayalam or Tamil languages and by effecting local publication with notice to the affected persons through vernacular dailies regarding the proposal for making prohibition, restrictions and conditions in respect of the affected area.

E. Inaction on the part of the respondents is ulterior and it is a studies one for preventing the persons who would be affected by the proposal covered by Exhibit- P2 from understanding the contents thereof and for causing effective objections/resistance for which they are legally entitled to. Therefore, nonpublication of Exhibit-P2 in Malayalam and Tamil languages with local circulation in vernacular dailies in nothing but violation of the fundamental rights guaranteed to the Citizens of the area wherein Exhibit-P2 conditions are proposed to be imposed. In other words, there is clear W. P. (C) No. 15989 of 2022

violation of the fundamental guaranteed under Articles 14, 19 and 21 of the Constitution of India.

F. It is worthwhile to note that the Government of Kerala is promoting Malayalam in its administrative procedures because of the reason that more than 80% of the people of Kerala are not familiar with languages like English and Hindi. In such circumstance by reckoning the federal concepts the Union cannot deny the publication of Exhibit-P2 in Malayalam language.

G. The publication of Exhibit-P2 in Malayalam or Tamil is inevitable so as to enable the people of the area to affect by Exhibit-P2 to avoid developmental blight in their life and for enabling the Government to implement its proposal in a suitable way peacefully and comfortably.

H. It is stated in Exhibit P-2 that as per Exhibit-P2 notification objections and suggestions could be submitted only by way of e-mail. This condition is against the option given in Rule 5(3)(c) of the Environmental Protection Rules, 1986. It is submitted that the area covered by Exhibit-P2 is a remote village in Thiruvananthapuram rural. There is only limited internet facility. Most of the farmers of that area are unable to use advanced technology for making their objections by limiting their contact only through e-mail and they cannot send letter of response in their vernacular languages either.

I. In that circumstance it is just and necessary to modify Exhibit-P2 by permitting the people of the affected area to submit their objections by means other than email in respect of Exhibit-P2.

3. Ext.P2 is the draft notification issued on 25.03.2022 by W. P. (C) No. 15989 of 2022

the Ministry of Environment, Forests and Climate Change, as regards Neyyar-Peppara Wildlife Sanctuary. As per the draft notification, any person interested in making objection or suggestion on proposals contained in the draft notification may forward the same in writing for consideration of the Central Government, within the period specified, to the Secretary, Ministry of Environment, Forests and Climate Change, New Delhi, or send it to the e-mail address of the Ministry.

4. Petitioner is an association of farmers. If the interest of the farmers or persons likely to be affected by the proposal for which draft notification is issued, seeking objections, certainly, they have to be provided with proper form of notification in the language known to them. Notification is in English and Hindi.

5. On 13.05.2022, this Court directed respondent No.1 to publish the Malayalam version of Ext.P2 notification. So far, there is no response, to the prayers sought for. However, Mr.Jayasankar V Nair., learned counsel appearing for Union of India submitted that State Government has constituted a Committee for translation of Central Government Legislation. Submission is placed on record. However, no material is placed on record in support of the above submission. However, going through the draft notification, prima facie, we are of the opinion that notification issued cannot be treated as legislation under Article 13 of the Constitution of India.

6. Learned Senior Government Pleader is directed to get instructions on the above aspect."

W. P. (C) No. 15989 of 2022

2. Subsequently, on 16.02.2023, this Court passed the following

order:-

"On instructions, Mr. Tek Chand V., learned Senior Government Pleader, submitted that vide G.O.(MS) No.42/68/Law Department dated 14.6.1968, a Committee has been constituted for translation of Central Government Legislations. The said G.O. is perused.

2. On instructions from respondent No.1, Mr. Jaishankar V. Nair, learned Central Government Standing Counsel, submitted that in compliance with order of this Court dated 13.5.2022, the Ministry of Environment, Forest and Climate Change, New Delhi, sent a letter dated 25.5.2022 requesting the State Government to submit translated version of Ext.P2 draft notification issued by the Ministry of Environment, Forests and Climate Change, as regards Neyyar-Peppara Wildlife Sanctuary.

3. As the translated version of draft notification was not received, the Ministry has sent reminder e-mail on 09.02.2023 to the State Government to submit translated version, at the earliest. Submission of Mr.Jaishankar V. Nair, learned Central Government Standing Counsel for respondent No.1, is placed on record.

4. Mr. Tek Chand V., learned Senior Government Pleader is directed to get instructions on the above."

3. On this day, when the matter came up for further hearing, on W. P. (C) No. 15989 of 2022

instructions from the Principal Chief Conservator of Forests (Wildlife)

and Chief Wildlife Warden, Kerala, Mr. V. Tekchand, learned Senior

Government Pleader, submitted that the Ministry of Environment

Forest and Climate Change, New Delhi, has published a draft

notification of Eco Sensitive Zone around Neyyar and Peppara

Wildlife Sanctuaries, on 26.03.2022.

4. Learned Senior Government Pleader further submitted that by

letter No. 11/03/2022-ESZ dated 24.05.2022, the Ministry had

instructed the State Government to submit the Malayalam translation

of the draft notification. Accordingly, after getting the translated

version, by letter dated 21.02.2023, the State Government has been

requested to publish the Malayalam version in the Kerala Gazette. He

also submitted that it is for the Government of Kerala to publish the

draft notification of the Eco Sensitive Zones around the said

sanctuaries.

5. Though Mr. Alex M. Scaria, learned counsel for the petitioner,

submitted that the draft notification be published in Tamil also, by

considering the fact that majority of the people there are Tamil

speaking, we are afraid that such directions can be issued as the W. P. (C) No. 15989 of 2022

official language in the State of Kerala is Malayalam.

Placing on record the submission of the learned Senior

Government Pleader, we direct the Principal Secretary to the

Government, Department of Environment and Climate Change,

Thiruvananthapuram, the 2nd respondent, to publish the Malayalam

version of the draft notification, declaring Eco Sensitive Zone around

Neyyar and Peppara Wildlife Sanctuary, within a period of two weeks

from today.

Accordingly, the writ petition is disposed of.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

MURALI PURUSHOTHAMAN JUDGE

Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 15989 of 2022

APPENDIX OF WP(C) 15989/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION BEARING NO. KKD/CA/479/2020 DATED 07.12.2020 OF THE PETITIONER ORGANIZATION ALONG WITH ENGLISH TRANSLATION.

Exhibit P2 TRUE COPY OF THE SAID NOTIFICATION WHICH IS ISSUED AS A DRAFT NOTIFICATION UNDER RULE 5(3) WITH NO. S.O. 1361 (E) DATED 25.03.2022 Exhibit P3 TRUE COPY OF THE INTERIM ORDER DATED 23.09.2020 IN W.P.C NO. 19531/2020 Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 21.02.2022 IN W.P.(C) NO. 27839/2022