Nirmala Johny & Ors. vs State Of Kerala & Ors.

“4.

However, certain sections representing the people residing in the coastal region have submitted that the construction of the Vizhinjam International Multipurpose Seaport project has caused coastal erosion around the port. The request was also raised before the Cabinet Sub Committee by the representatives of the local people during discussions.

5.

In the circumstances, Government are pleased to constitute an Expert Committee to examine whether there has been any such coastal erosion consequent to the work done for constructing the port at Vizhinjam and to identify specific measures to address the coastal erosion if any, observed in the zone of influence of construction. The committee shall hear the views of the representatives of the local population before finalising the report. The committee shall have the following members.

1	Shri. M.D.Kudale, Former Additional Director, Central Water and Power Research Station (CWPRS), Pune (B-303, Panchavati Housing Society, Chavan Nagar, Dhankawadi, Pune 411043, Maharashtra)	Chairman
2	Dr. Riji John, Vice Chancellor, Kerala University of Fisheries and Ocean Studies, Kochi.	Member
3	Dr. Tejal Kanitkar, Associate Professor, School of Natural Sciences & Engineering, National Institute of Advanced Studies (NIAS), Indian Institute of Science, Bangalore	Member
4	Dr. P K Chandramohan, Former Chief Engineer, Kandla Port Trust. (Gowri Sadan, Azad Road, Kaloor, Kochi, 682 017	Member

6.

The Terms of Reference for the Expert Committee will be issued separately.”

“U. The Expert Committee members are tainted by conflict of interest due to their personal interest and involvement in the project, and connections to the 6^th and the 7^th respondent. The Chairman of the Committee, Mr.MD Kudale, has been working as an expert member of ‘Technical Sub-committee for the Development of Vizhinjam Seaport Limited since 2012’ as seen in the ER Sheet (Employee Register) data entry form of Central Water and Power Research Station CWPRS, Pune from where he retired in 2017. Expert member Dr. PV Chandramohan, served as Chief Engineer of Kandla Port, Gujarat. However, from 2006 and till now he has been working as the President-Technical, Navayuga Engineering Company Ltd, Hyderabad. Navayaga Engineering Company Limited and Adani Enterprises incorporated a new company called Vijayawada Bypass Project. Another member, Dr Riji K John, though when his name was announced as a member of the committee was the Vice-Chancellor of KUFOS, this Hon’ble Court had quashed his appointment as VC. The 6^th respondent VISL, the implementing agency of Vizhinjam Port, was officiating as secretary to the Committee for a majority of its duration.

V. The Chairman of the Committee Sri. MD Kudale, has taken in the report a dramatically opposite view to his findings in the paper on “Impact of port development on the coastline and the need for protection” published in Indian Journal of Geo-Marine Sciences in December 2010.”

“i.

Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 1^st respondent to permit any further construction at Vizhinjam International Seaport only after consideration of the detailed report/findings by the Expert Committee constituted by the 1^st respondent through Ext.P11 Govt. Order;

ii.

Call for the records leading to the Final Report of the Expert Committee, pursuant to Exhibit P-11 G.O. dated 06.10.2022 by issue of a Writ of Certiorari or any other appropriate writ, order or direction, and set up an independent committee under the aegis of this Hon'ble Court to report on the terms fixed by Exhibit P-11.

iii.

Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 2^nd and 5^th respondents to study through the expert committee appointed by the Hon'ble NGT in OA 74 of 2014 whether the constructions pursuant to Ext.P1 clearance, has aggravated coastal erosion leading to negation of the object of the Coastal Regulation Zone Notification of 2011 and 2019 to, "ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment ...".

iv.

Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 3^rd and 4^th respondent to comply with the provisions of Disaster Management Act, 2005 and carry out immediate assessment of the Vizhinjam International Seaport Project from the point of view of the State and District Disaster Management Plan.

vi.

Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 1^st and 4^th respondents to ensure that the petitioners are provided suitable alternate housing in the seacoast with compensation assessed and paid for loss of livelihood from the time of loss of their houses;

vii.

Issue a writ in the nature of mandamus or any other appropriate Writ, order or direction to the 1^st respondent to ensure for Fishers among the petitioners and others who lost their livelihood as a result of sea erosion especially Shore seine fishermen and net owners, Mollusc collectors and women fish vendors-adequate financial compensation including compensation for loss of occupation during the period of 2016 to 2022.;

vii.

Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 1^st respondent to undertake a project for restoration of the eroded beaches of national importance like Kovalam and Sanghamugam and other beaches of Pannathura, Poonthura, Beemapalli, Kochu thopu, Valiathura and Vettukad through regular sand bypassing and beach nourishment process.

viii.

To dispense with the filing of the translation of vernacular documents;.

ix.

To award to the petitioners the costs of these proceedings;”

“28.

Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullity the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor has the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.”

“48.

Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order. High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advice, we rest the matter there and leave it to the wisdom of the Court(s) concerned, which ultimately may look to the larger public interest and the national interest involved.”

“42.

The next contention raised on behalf of the appellants before us is that the entire restriction is based on an illogical presumption of likelihood of bias. The presumption of legal bias being without any basis and ill-founded, the amendment itself is liable to be declared ultra vires. This contention, again, does not carry any weight. This argument is misconceived on facts and law, both. It is not only the mischief of likelihood of bias which is sought to be prevented by the amendment but the amendment has a definite purpose and object to achieve which is in the larger public interest. Such legislative attempt, not only to adhere to but to enhance the values and dignity of the legal profession, would add to the confidence of the common litigant in the administration of justice and the performance of duties by the Tribunal. ………

45.

Having regard to the prevalent values and conditions of the profession, most of the legal practitioners would not stoop to unhealthy practices or tactics but the legislature, in its wisdom, has considered it desirable to eliminate any possibility of conflict between the interest and duty and aimed at achieving this object or purpose by prescribing the requisite restrictions. With the development of law, the courts are expected to consider, in contradistinction to private and public interests, the institutional interest and expectations of the public at large from an institution. These are the balancing tests which are applied by the courts even in the process of interpretation or examining of the constitutional validity of a provision.

46.

Under the English law, the genesis of bias has been described as the perception that the court is free from bias, that it is objectively impartial stems from the overworked aphorism of Lord Hewart, C.J. in R. v. Sussex JJ., ex p McCarthy [(1924) 1 KB 256] , KB at p. 259 wherein he said:

‘… it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ However, later the courts there felt that too heavy a reliance upon the Hewart aphorism in instances of alleged bias produces the danger that the appearance of bias or injustice becomes more important than the absence of actual bias, the doing of justice itself. It is, therefore, of importance that perceived bias is not too readily inferred, such as to negate the doing of justice.

47.

In Porter v. Magill [(2002) 2 AC 357 : (2002) 2 WLR 37 : (2002) 1 All ER 465 (HL)] , the House of Lords finally decided the proper test for finding perceived or apparent bias, after judicial debate for over two decades, which displayed the welcome interplay of judicial pronouncements within the jurisdictions of the English common law, Scotland and Strasbourg jurisprudence. The test is now whether the fair-minded observer, having considered the facts, would consider that there was a reasonable possibility that the tribunal was biased. (See Sir Louis Blom, Q.C., “Bias, Malfunction in Judicial Decision-Making” [2009 Public Law 199] .)

48.

Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action with reference to the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial chastisement but if it falls in the latter, it would hardly affect the decision, much less adversely.

………

50.

The element of bias by itself may not always necessarily vitiate an action. The court would have to examine the facts of a given case. Reverting to the facts of the present case, despite their absence from the object and reasons for the amendment of Section 129(6) of the Customs Act it cannot be held that the element of bias was presumptuous or without any basis or object. It may be one of the relevant factors which probably would have weighed in the mind of the legislature. When you have been a member of a tribunal over a long period, and other members have been your co-members whether judicial or technical, it is difficult to hold that there would be no possibility of bias or no real danger of bias. Even if we rule out this possibility, still, it will always be better advised and in the institutional interest that restrictions are enforced. Then alone will the mind of the litigant be free from a lurking doubt of likelihood of bias and this would enhance the image of the tribunal. The restriction, as already discussed, leaves the entire field of legal profession wide open for the appellants and all persons situated alike except to practise before CESTAT.

51.

Besides the possibility of bias, there is a legitimate expectation on the part of a litigant before the Tribunal that there shall not be any possibility of justice being denied or being not done fairly. These are the concepts which are very difficult to be defined and demarcated with precision. Some element of uncertainty would be prevalent. There can be removal of doubts to the facts of a given case that would help in determining matters with somewhat greater uncertainty. The contention of the petitioners that there has to be empirical data to suggest their practise before the Tribunal resulted in instances of misdemeanour which would have propelled the respondents to insert such a provision in the enactment, has rightly been rejected by the High Court. It may not even be proper to introduce such amendments with reference to any data. Suffice it to note that these amendments are primarily based upon public perception and normal behaviour of an ordinary human being. It is difficult to define cases where element of bias would affect the decision and where it would not by a precise line of distinction. Even in a group, a person possessing a special knowledge may be in a position to influence the group and his bias may operate in a subtle manner.

52.

The general principles of bias are equally applicable to our administrative and civil jurisprudence. The members of the tribunals called upon to try issues in judicial or quasi-judicial proceedings should act judicially. Reasonable apprehension is equatable to possible apprehension and, therefore, the test is whether the litigant reasonably apprehends that bias is attributable to a member of the tribunal.”

“15.

………..It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct……”

“The construction of breakwaters and dredging of navigation channels for port development interfere with the longshore Littoral drift. The main impact of the port development is accumulation on the updrift side of the longshore drift and erosion of the downdrift side. The impact is prominent on the coastline having high rate of longshore sediment transport.”