Kerala HC Bars Vizhinjam Erosion Panel Report Over Members’ Project Links, Orders Fresh Independent Committee

In brief

The question

Whether the petition was liable to be dismissed for delay and laches, given that the alleged erosion had been occurring for several years before the petition was filed in 2022.

The court held

The Court held that the Ext.P11 Committee was improperly constituted because of the identified conflict-of-interest concerns.

It also directed

It declared the Committee’s constitution flawed, directed that its final report not be acted upon, and required the State to constitute a fresh, independent committee to conduct the studies contemplated by Ext.P11, ensuring that its members have no conflict of interest.

01Facts

The petitioners, residents of fishing communities near the Vizhinjam International Seaport, alleged that port construction had caused coastal erosion and challenged the independence of the Expert Committee constituted by the State under its Government Order dated 6 October 2022 (Ext.P11).

pp. 21–27

They sought, among other reliefs, that the Committee’s report not be acted upon and that an independent committee be appointed.

pp. 21–27

The State and the port respondents opposed the challenge, relying in part on reports from a separate committee constituted pursuant to National Green Tribunal directions.

pp. 21–27

The Court confined its consideration to the Ext.P11 Committee and its report; the petitioners stated they were not seeking a stay of the project.

pp. 35–37

02Issues

i.Whether the petition was liable to be dismissed for delay and laches, given that the alleged erosion had been occurring for several years before the petition was filed in 2022.

pp. 30–33

ii.Whether the Ext.P11 Committee’s constitution and report were vitiated by conflicts of interest among its members and insufficient independent examination.

pp. 36–38, 45–49

iii.Whether the Court should direct the State to constitute a fresh, independent committee.

pp. 49–50

03Law Applied

Under Article 226, judicial review of expert decisions concerning major infrastructure projects is limited, and courts ordinarily defer to technical expertise; intervention may be warranted where the decision is contrary to law or affected by mala fides (Union of India v. Kushala Shetty, (2011) 12 SCC 69; National High Speed Rail Corporation Ltd. v. Montecarlo Ltd., (2022) 6 SCC 401).

pp. 33–36

The bias inquiry requires more than a mere suspicion: the Court must assess whether the circumstances establish a reasonable likelihood or real danger of bias, considering human probabilities and ordinary conduct (N.K. Bajpai v. Union of India, (2012) 4 SCC 653; A.K. Kraipak v. Union of India, (1969) 2 SCC 262).

pp. 39–45

The governing principle is that an expert decision-making process must be sufficiently independent to avoid a reasonable apprehension that conflicting interests could affect the decision.

Provisions in the judgment · 1 · Linked ones open on LawLens

Customs Act,1962 Section 129

04Reasoning

The Court rejected the laches objection because the State had issued Ext.P11 in response to continuing concerns about erosion, and the petition directly challenged the committee constituted under that order.

pp. 30–33

Although the Court recognised the limited scope of review in a major infrastructure project, it found that the allegations concerning the Chairman’s prior role on a project sub-committee and another member’s professional connection to a company linked with the project were not effectively denied; the respondents’ explanation that prior involvement could be beneficial did not remove the concern.

pp. 45–47

The Court also noted that the Chairman’s earlier published views on port-related shoreline effects contrasted with the Committee’s conclusion, and that the Committee’s site inspection occurred on only one occasion.

pp. 46–49

These circumstances, taken together, rendered the Committee’s constitution flawed. The existence of the NGT-appointed monitoring committee did not cure the defect in the separate committee the State itself had constituted under Ext.P11.

p. 49