IN
THE HIGH COURT OF KARNATAKA AT BANGALORE
(Original Jurisdiction)
Writ Petition No. 20905 of 2002
Between:
1. Arthur J.
Pereira
S/o Late Thomas Pereira
aged 44 years, Indian Christian (RC)
R/o Karambar
Bajpe Post
Mangalore 574142
2. Shri. M.
Bhaskar
S/o Thania
aged 42 years
Chairman
Malavoor Gram Panchayat
Malavoor
Bajpe Post
Mangalore 574142
3. Rev. Fr.
Ronald D’souza
S/o Benjamin D’souza
aged 41 years, Roman Catholic
Parish Priest
Sacred Heart Church, Maril
Darbe, Puttur
Dakshina Kannada
4. Dalita
Sangarsha Samithi
Dakshina Kannada District Unit
3rd Floor, Pereira Hotel
Opp. Govt. College
Mangalore 575 001
Represented by its District Convenor Shri. Sunder Ullal Kapikad
S/o Chowkara
Aged 48 years,
5.
Environment Support Group ®
S-3, Rajashree Apartments
18/57, 1st Main, SRK Gardens
Bannerghatta Road, Jayanagar
Bangalore 560041
Represented by its Coordinator/Trustee Shri. Leo F. Saldanha
S/o S. John Saldanha
Aged 34 years
.......Petitioners
Versus
1. Union of
India
Ministry of Civil Aviation
R. G. Bhavan
Safdarjang Airport
22 Akbar Road
New Delhi 110001
Represented by its Director General
2. Chairperson
Airports Authority of India
R. G. Bhavan
Safdarjang Airport
New Delhi 110003
3. Ministry
of Environment and Forests
Paryavaran Bhavan
CGO Complex
Lodhi Road
New Delhi 110003
Represented by the Secretary to the Government of India
4. Karnataka
State Pollution Control Board
Public Utility Building
M. G. Road
Bangalore 560001
Represented by its Member Secretary
5. The Deputy
Commissioner
Dakshina Kannada District
Mangalore 575001
......Respondents
1953 - Bajpe
Airport created to cater to flight movements of Dakota aircrafts.
The same airport was later
modified to cater to the flight movements of Avro and Boeing 737 planes.
1987 - 1988 - Demand for up-gradation of the Bajpe Airport,
Mangalore to enable flight movement of AB - 320 class of aircraft proposed by
Government of Karnataka and the Mangalore Chamber of commerce and Industry.
17.11.1988 - Airports Authority of India placed a demand for the
acquisition of 172.5 acres of land for the above purpose before the Government
of Karnataka per requisition letter S.A.A. M. L. 0-1 (SR 88: 31 97-99) from the
Airport Authority (then known as the “National Airport Authority”) to the State
Government.
17.8.1989 - S.4 (1) notification under the Land Acquisition
Act, 1894 (L.A.Q (1) CR 677: 88-89) initiated based on the “proposal for the
second runway and the terminal building complex“ by the Special Deputy
Commissioner, claiming that the properties in Malavoor, Adyapady and Kolambe
villages are required for the construction of the above. Affected public are
informed that the Assistant Commissioner and his staff have been appointed to
initiate land acquisition proceedings. Public asked to file objections within
30 days.
25.8.1996 - Memorandum submitted to Sri. H.M Shavul (Chairman,
Airport Authority of India) by the Parish Priest (Mary Help of Christians
Church, Adyapady) on behalf of the project affected communities to drop the
Airport extension project from Malavoor, Adyapady and Kolambe villages of
Mangalore Taluk. The memorandum laid out the technical reasons why the
petitioners were of the opinion that the project was not feasible.
25.9.1996 – In
response to the aforesaid memorandum, the Director, Air Routes and Aerodromes
(Plng.) of the Airports Authority of India indicates that it was based on a
feasibility study that a demand for acquisition of land was made by the
Airports Authority to the Govt. of Karnataka.
25.8.1997 – The
Airports Authority of India is requested for a copy of the feasibility report
referred to in letter dated 25th September 1996.
18.9.1997 – The Dy. Director (Plng.), Airports Authority of India, responds
that feasibility report requested for in letter dated 25.8.1997 is yet to be prepared.
19.12.1997- Writ petition No. 37681/1997 filed in the High Court of Karnataka,
praying that notice be taken of the fact that the project was being developed
in contravention of the applicable laws and guidelines, and that direction be
issued to proceed with development of the project only in accordance with the
law.
18.11.1998 - Writ petition No. 37681/1997 dismissed by the High Court on the
grounds that the project was still in the initial phases and as such the
petition was premature, and based on the assurances of the respondent
authorities, that there was every intention of proceeding as per the applicable
laws and guidelines and that all safety precautions as well as clearances, and
impact assessments would be carried out.
21.11.
1998 - As part of the inauguration of the new arrival block at
Mangalore Airport, the Airports Authority of India indicates that foreseeing
the growth in traffic potential at Mangalore, the Govt. of Karnataka has
confirmed the acquisition of 175.2 acres of land in favour of AAI for
construction of a new terminal building and a 9000 feet long new runway. And that the AAI is keen to begin with the
project work once the entire land without any encumbrances is handed over to
it.
30.10.2001 – An
application is made by the first petitioner to the Deputy Commissioner of
Dakshina Kannada District seeking a copy of the Executive Summary of the
Environment Impact Assessment prepared by the Airports Authority of India for
the aforesaid project.
09.11.2001 - With
reference to the aforesaid application, the Deputy Commissioner of Dakshina
Kannada writes to the Airport Director, Mangalore Airport, urging that such
necessary action as deemed fit be taken on the matter.
23.04.2002 - The Tahsildhar of
Mangalore issues a Final Notice to the project affected communities that should
they fail to evict the premises and lands under acquisition for the expansion
of the Mangalore Airport before 30 April 2002, forceful eviction would follow
by the Public Works Department.
MEMORANDUM OF WRIT PETITION UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA
Petitioners
above named state as follows:
1.
The
Petitioners:
1.1 The 1st
Petitioner is a farmer at Malavoor Village and is the President of Jana
Jagrathi Samithi of Malavoor and Kenjar villages and is also an active member
of the Betterment Committee of the Karambar Higher Primary School, Malavoor,
Mangalore Taluk. He is a
public-spirited person who has been active for several decades now in various
public interest matters and has been the Secretary of the Vimana Nildana
Vistharana Virodhi Samithi, an association of local people questioning the
techno-economic feasibility of the Mangalore Airport Expansion Project.
1.2 The 2nd
Petitioner is the Chairperson of the Malavoor Gram Panchayat. Along with fellow Panchayat members, he has
been consistently raising concerns with the district authorities about the
problems the project as presently conceived contains, and the need for a
transparent review of its techno-economic and environmental and social impacts.
1.3 The 3rd
Petitioner was previously the Parish Priest of Mariapura Church, Adyapady,
which falls in the project zone. He has
been deeply involved in the socio-economic upliftment of the communities in
this region, and is the President of the Vimana Nildhana Vistharana Virodhi
Samithi.
1.4 The 4th
Petitioner is an organisation that is involved in the social and political
upliftment of the Scheduled Castes and Tribes.
The District Unit has been conscientising the Dalits of Dakshina Kannada
district to fight against social injustices and demand a better quality of life
by initiating various socio-economic upliftment programmes in a systematic
manner.
1.5 The 5th
Petitioner is a research, training and advocacy initiative, registered as a
Public Charitable Trust. It has over
the years raised a variety of leading Public Interest Litigations and works
closely with various Statutory Authorities in ensuring implementation of
regulatory standards and law pertaining to critical infrastructure and urban
development projects. In recognition of
its efforts, the Union Ministry of Environment and Forests requested from this
petitioner during October 2000 a document reviewing and suggesting areas of
reform in the functioning of the Ministry.
In the instant case, it has enabled the matters pertaining to this
litigation to be brought before the International Civil Aviation Organisation.
1.6 All the
petitioners, therefore, have a common cause, that is to work in the public
interest and ensure that all developments are accommodated in a manner that is
not detrimental to society.
1.7 Petitioners
are presenting this petition and prosecuting the matter in public interest and
are not seeking any personal benefit or relief for them.
Facts of the case
2
Previous
Writ Petition in the said matter
2.1 That a
Writ Petition No. 37681/1997 was filed before this Hon’ble Court by the first
Petitioner and others as a public interest litigation seeking writ of mandamus
directing the respondents, Union and State Government agencies, not to proceed
with the expansion of the Mangalore Airport project. The project involved the
development of a second runway, and the petitioners challenged the same on the
grounds that the project as proposed compromised safety of passengers and local
communities as it was conceived in flagrant violation of fundamental standards
and statutes governing the development of aerodromes. A true of this Hon’ble Court’s Judgement is annexed at ANNEXURE
A.
2.2 The
Hon’ble Court dismissed this petition, stating, in summary, that:
“(T)he expansion of the
Bajpe airport project is at the initial stage” and that the Airport Authority
of India (2nd Respondent to the Writ Petition) has in objections filed by them
“unequivocally stated that all the safety measures, etc., stated by the
petitioners in their writ petition will be followed during the progress of the
project and nothing can be said before the lands are handed over to the second
respondent. Considering these facts, we
are of the view that the petitioners have rushed to this Court before commencement
of the project itself and the writ petition is premature.”
2.3 Having
stated thus, this Hon’ble Court held that:
“(i)t is not therefore
necessary to consider the various grounds taken by the petitioners in the writ
petition to allege that the respondents have been proceeding with the project
in a casual manner. There is nothing to
doubt about the statement made by the second respondent in their objection
statement and we are sure that the respondents will be taking all necessary
measures under the different enactments etc., before proceeding with the
project in question.”
2.4 This
judgement of this Hon’ble Court was delivered on 18 November 1998. It is over 42 months (or over three years)
since this judgement was delivered. The
second respondent in particular has had sufficient time and opportunity in
living up to the expectations and the confidence reposed in them by this
Hon’ble Court with regard to fulfilling its due obligations, particularly
responsibilities in complying with the law and standards relating to the
project.
2.5 Yet, no
initiative whatsoever has been taken by them to either comply with the
commitment placed before this Hon’ble Court as described above, or have any
effective steps been taken to comply with the law and standards as required. The project developers have neither prepared
the detailed techno-economic feasibility report nor initiated any steps in
conducting the Environment Impact Assessment of the project.
2.6 In a
leading statement issued on 21 November 1998 as part of the inauguration of the
new arrival block at Mangalore Airport by the Airports Authority of India, less
than a week after the aforementioned judgement of this Hon’ble Court, the
future plans for Mangalore Airport were stated thus:
“Foreseeing the growth in
traffic potential at Mangalore, the State Govt. of Karnataka has confirmed the
acquisition of 175.2 acres of land in favour of AAI (Airports Authority of
India) for construction of a new terminal building and a 9000 feet long new
runway. Currently, the project cost of
the new runway and terminal building is estimated at Rs. 90 crore. AAI is keen to begin with the project work
once the entire land without any encumbrances is handed over to it.”
The
brochure elucidating such plans is annexed at ANNEXURE B.
2.7 It thus
seems that the respondents wish to proceed with the project without taking any
precautions required in developing this sensitive infrastructure, in flagrant
violation of submissions before this Hon’ble Court and the directions thereof. This can be construed from the fact that on 23 April 2002, the Tahsildhar of Mangalore
issued a Final Notice to the project affected communities that should they fail
to evict the premises and lands under acquisition for the expansion of the
Mangalore Airport before 30 April 2002, forceful eviction would follow by the
Public Works Department. The
project is thus matured, and the Petitioners are constrained to appear before
this Hon’ble Court pressing their case, as before. A copy of one such notice is annexed at ANNEXURE C.
2.8 In
particular the Petitioners pray the indulgence of this Hon’ble Court to take
strong view of the fact that this sensitive project as proposed is conceived in
flagrant violation of requisite standards and the law in this regard, and this
lapse may gravely endanger innocent lives of passengers and local communities,
and result in enormous loss to the public exchequer.
3
Existing
Airport:
3.1 The existing Mangalore airport near Bajpe, about 20 kilometres
from Mangalore city by road, was originally designed in 1953 for flight
movements of Dakota planes and later modified to accommodate flight movements
of Avro and Boeing 737 planes. This is
a tabletop airport with a runway strip of 1,700 metres approximately, and is considered
a very risky airport as it is surrounded by hillocks on the eastern and western
sides, limiting the possibility of safe flight movements.
3.2 The proposal to expand this airport stretching east to southwest
encompassing Kolambe, Adyapady and Malavoor villages of Mangalore Taluk, is
once again being developed as a tabletop airport. The proposed runway length is 2980 metres, and the width of the
airstrip, by and large, does not exceed 200 metres. The location is surrounded
by steep hillock drop all around, except on the northeastern side, and abutting
a highly industrialised zone. A
topographical map of the proposed project location and the surrounding region
is annexed at ANNEXURE D in evidence of this fact.
4 Fundamental
violations in developing an airport in the present location:
4.1 The 2nd
Respondent, Airports Authority of India, in their Statement of Objections dated
14 October 1998, annexed at ANNEXURE E, based on which this Hon’ble
Court dismissed the earlier petition, stated in ‘Re Para 4.11….4.13’ that “all
social, economic and environmental impacts of such a project are and will
definitely be considered as and when the project progresses”. It also presented the view per ‘RE. Para
4.10’ “EIA Report and other
environmental clearances which are necessary will be submitted to the Ministry
of Environment only after the land has been handed over to the Respondent No. 2
and also after a detailed project report has been prepared”. From this it is clear that none of the
required techno-economic and environmental and social impact reports were
available at that time, as required per law.
Over three years have lapsed and the project is now at a stage of
inception. Yet the required reports are
yet to be prepared.
4.2 Consequently,
the Petitioners wish to stress that there is no rationale guiding the
development of an highly sensitive facility such as an airport, for when there
is no feasibility report it would be very difficult to even considering whether
an airport should be developed or not. A feasibility report is the fundamental
basis for development of plans, budgets, designs and such other basic features
of the project. It thus appears the
Respondent Authority made this statement even as it was fully aware that it had
made a requisition for land to implement the project over a decade before, more
precisely on 17 November 1988,and without intention of guiding rational,
planned and safe development of the project.
It must then also be said of the 5th Respondent, Deputy
Commissioner of Dakshina Kannada, that to initiate Land Acquisition process,
when clearly the technical feasibility of the project had not been studied at
all, amounts to arbitrary use of power vested in a public authority.
4.3 It is
claimed in the aforementioned objection statement by the 2nd
Respondent that, per ‘Re Para 5.1 and 5.2’ “(i)t is completely false” on the
part of the petitioners “to suggest that the respondent have violated the
standards and recommendations of the International Civil Aviation Organisation
(ICAO) to which India is a signatory”.
It further stated that “the respondents have already filed their
differences with the ICAO to the effect that if the existing airport is to be
upgraded, then the existing runway strip’s width will continue if additional
land is not available.”
4.4 The
Petitioners wish to point to this Hon’ble Court, that the very fact that the
2nd Respondent has filed a report of differences with ICAO from standards
prescribed, in adherence with Article 38 of the Convention on International
Civil Aviation, to which India is a signatory, is an acceptance that the
project does not conform to internationally accepted standards.
4.5 In
specific, the Petitioners wish to draw the attention of this Hon’ble Court to
the fact that the 2nd Respondent is aware of the difficulty in acquiring
additional land to conform to the standards pertaining to the minimum width of
the basic strip of the runway, which is 300 metres for an Instrument Runway, as
is proposed in the present case. The
proposed expansion is onto a cliff, with a drop of about 80 metres all around, and
thus it is impossible to conform with the basic standard applicable with regard
to the minimum width of the runway, as the maximum existing physical width is
only 200 metres.
4.6 The 2nd
Respondent in claiming that this matter “is under consideration of the ICAO”
(Re Para 5.1 and 5.2 of the Objection Statement) was clearly misleading the
Court on the basic statute involved.
For it is first and foremost bound to conform with the Notification of
the Ministry of Civil Aviation, No. S. O. 988, dated 5th January
1988, annexed at ANNEXURE F, which clearly prescribes per Definition 1
that the Basic Strip will be “a uniform strip of 150 metres on either side of
the centerline of the runway which extend 60 metres beyond each extremity of
the runway and or associated runway of instrument runway and 75 metres in case
of non-instrument runway”. In other
words, an airport should not be developed in a location that does not allow for
such width of runway. Thus the 2nd
Respondent is clearly in violation of a fundamental Statute of India regarding
design and development of airports.
4.7 In as much
as the 2nd Respondent claims to have conformed with the ICAO
standards, by its statement relating to filing the differences, the Petitioners
wish to point out, that this very statement does not reflect conformity with a
standard, but indeed the contrary. The
rather circumambulatory explanation offered by the 2nd Respondent,
in the aforementioned Objection Statement to the earlier writ, perhaps was an
attempt to distract the attention of this Hon’ble Court from the gravity of the
violation, and the disastrous consequences this could bear for the future.
4.8 India on
grounds of being a signatory to the International Civil Aviation Treaty is
required to fully conform to standards developed by ICAO. And here it must be pointed out that the
Annex 14 of the ICAO standards clearly defines that the width of the basic
strip must be a minimum of 300 metres, per Standard 3.3.3 referred to in page
16. A relevant true extract of the same
is annexed at ANNEXURE G. Thus,
the 2nd Respondent is in clear violation of not just the
aforementioned Notification of the Ministry of Civil Aviation, but also of the
ICAO standards. Therefore, to have
claimed in its aforementioned Objection Statement that it would comply with the
standards was clearly an untruth as the project, as conceived, couldn’t be
developed to prescribed standards in the present location.
4.9 Annex 14
of the ICAO’s “International Standards and Recommended Practices for
Aerodromes” pertains to details of Aerodrome Design and Operations. The present
airport fundamentally violates the prescribed standards and is hopelessly below
the recommendations proposed. Some
significant violations are articulated hereunder, with reference to other statutory
standards.
4.10
Reference Field Length: As per
the standards prescribed in page 5 of Annex 14, when the aeroplane reference
field length required exceeds 1200 metres, then as per the Standard 3.3.3
referred to in page 16 of Annex 14, the minimum width of the runway strip must
be, at the very least, 300 metres.
However, the proposed location for the said project has a maximum width
of 200 metres almost all along the proposed 2980 metres runway strip, and given
that the same is situated on a table-top formation with the existence of
hillock drops on either side, i.e. both towards and the north and the south,
there is no scope whatsoever for expanding the width. Therefore, the proposed location is most unsuited and faulty in
conforming to one of the most fundamental standards of airport design.
4.11
Graded Portion of Runway: A
further requirement pertaining to the width of the runway is that the graded
portion must extend at the very least up to the 210 metres mark, as per the
Standard prescribed in 3.3.8, page 162 (Figure A-3) of the Annex 14. Beyond this graded area, extends the safety
area. In the instant case, none of
these mandatory safeguards can be provided, as the existent width of the
plateau does not exceed 200 metres. Any
extension of the proposed runway to the prescribed standards would mean raising
the level of the land from a depth of 80-100 metres approximately, an
impossible proposition given the sheer bulk of soil and engineered structures
required and the enormous cost involved.
4.12
Minimum Area for Stop-way: At page
155 of the said report, para 2-1 prescribes standards for providing the minimum
area for a stop way and/or a clear way in the event an aircraft undershoots or
over-runs the runway. For instance, if
an aircraft has initiated take off, and a technical flaw requires emergency
stop, the standard prescribes the minimum area that should be kept free to
enable such a stop. In the instant
case, the runway distance itself is about 2400 metres, and even if the area
left is most cautiously utilised, what is left is only about 300 metres on each
end of the runway. By the prescribed
standard, this is far below the required distance needed for an emergency stop
way. Therefore, the chances of an
aircraft that has achieved the decision speed forcing an emergency stop are
critically minimised, and the inevitable consequence could be that the plane
would come crashing down the hillsides from a height of 80-100 metres on either
side of the proposed runway.
4.13
Obstacle Limitation surfaces: The proposed location is abutting a region
where massive industrialisation and infrastructure development has already been
initiated by the location of the 9 million tonnes per annum (mtpa) Mangalore
Refineries and Petrochemicals complex and the BASF chemical dyes factory, the
expansion of the Kudremukh Iron Ore Company Ltd. with captive power plant, and
several other primary and secondary sector industries have already been cleared
for location. In addition, several
other medium and small-scale industries within the Baikampady industrial estate
are also coming up. All of these
industries are highly polluting and emit large quantities and volumes of smoke
and dust every day, and require very high emission stacks, ranging from 100 to
almost 300 metres to comply with environmental regulations of the country. The decision to locate the proposed airport,
thereby, seems to have been taken without appreciating the fact that these
industries are bound to severely handicap visibility as well as cause
obstruction to flight movements, thereby placing the lives of passengers and
the public at great risk. In addition,
the industries involve manufacturing processes which have the potential of
interfering with the electronic and electrical devices that are used in
aircrafts, the proper functioning of which are extremely vital in ensuring safe
take-offs and landings of aircrafts which rely heavily on Instrument Landing
Systems, as is the case in the said project.
4.14
Provision for Current and future runway lengths: In the instant case there is absolutely no
scope for expansion at all, particularly if at a later day the need arises for
expansion, which is most likely the case given the growing air traffic and
demand for air travel. Further, the
present location critically undermines the possibility of the airport achieving
an international stature, as then the landings of wide-bodied cargo and
passenger aircraft will be the order, and the proposed runway and location will
not support such requirements. The present proposal thus is extremely
shortsighted in its development.
4.15
In addition to standards, Annex 14 also proposes several
recommendations, which establishes beyond doubt that the proposed location is
most unsuited and dangerous for the development of an airport. Some significant recommendations, which the
instant case fundamentally flouts, are quoted and the manner in which the same
are violated is articulated hereunder:
4.16
Fire fighting Preparedness: Per Recommendation No 9.2.19 on page 107 of
Annex 14: “The operational objective of
the rescue and fire fighting service should be to achieve response times of two
minutes, and not exceeding three minutes to the end of each runway, as well as
to any other part of the movement area, in optimum conditions of visibility and
surface conditions.” In the instant
case, since all around the runway the landform is a hillock drop, it is
impossible to provide for such rescue operations. Further, given that the valleys all around form an undulating
terrain, the rescue team will have to traverse several kilometres even to reach
the point of accident. It may be recalled that in the recent crash of the
Alliance Airlines civilian aircraft in Lucknow, as in the case of the crash of
the AB-320 airplane in Bangalore, even lesser physical impediments caused a
very high response time resulting in unnecessary loss of life and property.
4.17
Emergency Access Roads: Per
Recommendation No 9.2.22 on page 108 of Annex 14: “ Emergency access roads should be provided for an aerodrome
where terrain conditions permit their construction, so as to facilitate
achieving minimum response times.
Particular attention should be given to the provision of ready access to
approach areas up to 1,000 metres from the threshold or at least within the
aerodrome boundary. Where a fence is
provided, the need of convenient access to outside areas should be taken into
account.” In the instant case, there is
simply no surface to provide such safeguards.
4.18
Garbage Disposal and Landfills close to the Airport: In the instant case the only garbage
disposal dump for the whole of the Mangalore city and its suburbs lies at
Pacchanady village, an aerial distance of hardly 3-4 kms. from the proposed
terminal tower. It may be pointed out
the Municipal Solid Waste Management Notification of the Ministry of
Environment and Forests issued on 25th September 2000, annexed at ANNEXURE
H, very clearly articulates the need for airports to be developed taking
into consideration the siting of landfills.
Sec 10 of Schedule III of the said Notification specifically instructs
as follows:
“Landfill
site shall be away from airport including airbase. Necessary approval of
airport or airbase authorities prior to the setting up of the landfill site
shall be obtained in cases where the site is to be located within 20 km of an
airport or airbase.”
In the
present case, since the landfill has been existent for some time, if the Second
Respondent was serious about developing a safe airport, it should have directed
the relevant municipal authorities to relocate the landfill. It is clearly directed to do, per Rule 81B
of the Aircraft Rules 1937, as follows:
“81B.
Prohibition of Slaughtering and flaying of animals, depositing of rubbish and
other polluted or obnoxious matter in the vicinity of aerodrome - No person shall slaughter or flay any animal
or deposit of drop any rubbish, filth, garbage or any other polluted or
obnoxious matter including such material from hotels, meat shops, fish shops
and bone-processing mills which attracts or is likely to attract vultures or
other birds and animals within a radius of ten kilometres of the aerodrome
reference point:
Provided that the Director-General or a Deputy Director-General of Civil
Aviation may, if he is satisfied that proper and adequate arrangement have been
made by the owners of the hotels, meat shops, fish shops and bone-processing
mills so as to prevent attraction of vultures or other birds and animals,
having regard to the vicinity of place of slaughter from the aerodrome,
arrangements for disposal or deposit of carcass, rubbish and other polluted and
obnoxious matter, grant permission in writing for the purpose”
Similarly standard 9.5.3 on Page
16 of the National Building Code, relevant extract of which is annexed at ANNEXURE
J, prescribes that:
“Butcheries, tanneries, and solid
waste disposal sites shall not be permitted within 10 kms. from the aerodrome
reference point.”
Also,
Recommendation No. 9.5.3 of Annex 14 prescribes:
“Garbage disposal dumps or
any such other source attracting bird activity on or in the vicinity of an
aerodrome should be eliminated or their establishment prevented. Unless an appropriate study indicates they
are unlikely to create conditions conducive to a bird hazard problem.”
No such
action, as required by the Aircraft Act, or other Statutes, has been initiated
in the present case. This despite a
detailed representation in this regard by the 1st Petitioner to the
Commissioner of the Mangalore Mahanagara Palike, dated 30 October 2001, annexed
at ANNEXURE K.
4.19
The National Building Code of India (NBC) formulated in 1983
under the Indian Standards Institution Act of 1952 comprises of a detailed list
of compliance standards in the construction or building or location of any
facility, infrastructure, industry or project.
The Code contains regulations, which can be immediately adopted or
enacted for use by various departments, municipal administrations and public
bodies. It lays down a set of minimum
provisions designed to protect the safety of the public with regard to
structural sufficiency, fire hazards and health aspects of various
facilities. The panel for establishing
the NBC includes 1st Respondent, i.e., the Director General of Civil
Aviation, New Delhi in his capacity as a Member of the “Panel for
Administration, Development Control Rules and General Building
Requirements".
4.20
In Chapter 9.5 of page 16 of the NBC referring to
“Development Control Rules and General Building Requirements”, specific
standards are laid down in the case of restrictions that need to be enforced in
the vicinity of airports. Some significant standards that the instant case
fundamentally flouts are quoted and the manner in which the same are violated
is articulated hereunder:
4.21
No industrialization close to airports: Per Standard 9.5.2.1 on page 16 of the
NBC:
“No new chimneys or smoke producing factories shall
be constructed within a radius of 8 kms. from the aerodrome reference
point.”
As
adverted to earlier, the immediate vicinity of the area is being developed into
a highly industrialised region comprising of industries emitting high
quantities of smoke and dust, thereby fundamentally violating this
standard. Further, the 9 mtpa refinery
set up by the Mangalore Refineries and Petrochemicals Limited (MRPL) has been
allowed to be established within 4 kms. of the airport. A relevant extract from the Environment
Impact Assessment of the MRPL project detailing its distance from the airport
is annexed at ANNEXURE L.
4.22
No Power Lines close to airports: Per
Standard 9.5.2.2 on Page 16 of the NBC:
“Overhead HT/LT
lines or telephone/telegraph lines shall not be permitted in the
approach/take-off climb areas within 3,000 metres of the inner edge of these
areas.” As has been already adverted to
sufficiently earlier, the development of an industrial region abutting the
proposed location for the said airport involves drawing of both electrical and
telecommunications lines, and thereby fundamentally violates this standard.
Importantly, a 2,20,000 volts capacity, high-tension main line supplying power
to the entire Mangalore region, is within 1,500 metres and in the approach
funnel of the proposed project, and could thus remain a permanent hazard to air
safety.
4.23
Noise control around airports: Further, in part VIII of the NBC relating to
Building services, Section 4 deals with the various details relating to
“Acoustics, sound insulation and noise control” and provides, at length, the
significant impacts that an airport can cause.
A specific quote from this is reproduced to highlight the impacts in the
proposed location.
Standard
3.3.1.1 on page 6 of the NBC:
Aircraft noise may disturb sleep, rest and communication and as such may
be considered potentially harmful to health.
It is important that no new development is carried out within areas
where the expected noise levels will cause mental and physical fatigue or
permanent loss of hearing. In case
development in such areas is essential, adequate sound insulation shall be
provided for the building.
The said
project is being developed without any caution exercised as to the safety of
the passengers, and the adverse impact on the health of people residing in the
neighbouring colonies, especially the children who study in the only school in
the vicinity.
4.24
Given this background the Petitioners wish to draw
the attention of this Hon’ble Court to other facts of this case.
5 Techno-economic
feasibility of the project:
5.1 In
pursuance of the concerns of the petitioners, the 3rd Petitioner
submitted an exhaustive memorandum dated 25 August 1996 to the 2nd
Respondent, clearly citing various technical reasons that would make the said
project an highly detrimental proposal in the public interest and marking
copies of the same to several leading representatives of the Government and the
relevant Government agencies in order to bring to their attention the concerns
raised. A true copy of the letter
written by 3rd Petitioner to the 2nd Respondent is produced at ANNEXURE M.
5.2 A response
to this was obtained from Shri. Jagannath, Director Air Routes and Aerodromes
(Plng.), Airport Authority of India in his letter dated 25 September 1996 and
the petitioners have produced a true copy of the said letter as ANNEXURE N. The relevant extracts from this letter are quoted hereunder:
“A demand
for the up gradation of (the said) airport
for AB-320 class of aircraft was put by the State Govt. of Karnataka and
the Chamber of Commerce and Industry during 1987 and the Airports Authority of
India got the feasibility study for the secondary runway and terminal building
carried out by M/s. RITES. Accordingly,
as per the directives of the Ministry of Civil Aviation, a demand for the
acquisition of 172.5 acres of land was placed by Airports Authority of India to
the State Govt. Of Karnataka during 1987-88 for the said purpose.”
5.3 However,
when the 3rd Petitioner approached the same authority on 25 August 1997, a year
later, requesting a copy of the feasibility report, Shri. P. B. Daswani, Dy.
Director (Plng.), Airports Authority of India in his letter dated 18 September
1997, a copy of which is produced at ANNEXURE
P, stated:
“AAI will
prepare the detailed feasibility report for the project in due course, but has
not done so yet.”
5.4 It may
thus be observed that 2nd Respondent has offered completely
contradictory statements on the question of the existence of the feasibility
report. In this context it may be observed that a third type of explanation has
been provided in the aforementioned Objection Statement of the Second
Respondent, wherein it was claimed in ‘RE Para 4.7’ as follows:
“The feasibility report mentioned in Annexure G (of
the original PIL) was made as a preliminary feasibility report. It is submitted that the final feasibility
report is to be prepared only after the land has been handed over to the respondent
No. 2, which the respondent reiterates, has note been done as yet”.
5.5 It is thus
unclear if a feasibility report exists at all, even at this late stage when on
record the land has been transferred to the 2nd Respondent.
6.1 The First
Petitioner pressed the need for a complete environmental review of the said
project in his representation dated 16 July 1997 to the Secretary, Union
Ministry of Environment and Forests (R-4).
In specific, an Environmental Public Hearing on the basis of a
comprehensive Environment Impact Assessment was urged in accordance with the
Environment Impact Assessment Notification issued by the Ministry, annexed at ANNEXURE
Q. There has been no response to
this representation dated 16 July 1997, annexed at ANNEXURE R. A separate representation inquiring with the
Respondents whether the mandatory Public Hearing has already conducted, and if
so could copies of the report be shared with the public, was filed on 01
September 1997, and the same is annexed at ANNEXURE S.
6.2 The matter
was further pursued by the 1st Petitioner with the Deputy
Commissioner of Dakshina Kannada, 5th Respondent, based on a
representation dated 30 October 2001 (annexed at ANNEXURE T) seeking a
copy of the Executive Summary of the Environment Impact Assessment. In response to this representation, Deputy
Commissioner wrote to the Airport Director of Mangalore Airport, per his letter
No. LAQ.CR.986/92.93, dated 09 November 2001, as follows:
“The
Petition cited above, requesting to supply a copy of the Executive Summary
prepared by the Airport Authority of India in regard to the Mangalore Airport
expansion Project is enclosed herewith for taking necessary action deem fit.”
A true
copy of this letter is annexed at ANNEXURE U.
6.3 The
Airport Director has not furnished any document so far. It may thus be the case
that an Environment Impact Assessment of the project has not been initiated
yet, in clear violation of the EIA Notification, and this when the project is
ready to be initiated. Further, this
would amount to the project authorities proceeding to construct the airport
without even applying for environmental clearance, as is fundamentally required
by the Environment Impact Assessment Notification.
6.4 The
petitioners wish to humbly submit, that the facts as set out above clearly
reveal the total non-application of mind on the part of the Government and the
designated authorities in as much as not considering any of the objections of
the Petitioners, and further proceeding in a lackadaisical and ad-hoc manner on
the development of an infrastructure of such crucial importance that draws
enormously from the public exchequer.
Further, the development of the project has not in the least considered
any of the social, economic and environmental impacts whatsoever. Most fundamentally, the airport is being
developed without conforming to the mandatory requirements of the various
standards set out for airport construction, most particularly the Aircrafts
Act, National Building Code of India, “International Standards and Recommended
Practices for Aerodromes” of the International Civil Aviation Organisation, and
the various notification relating to environment impact per the Environment
Protection Act.
6.5 In light
of the above, the petitioners have no other equally efficacious remedy other
than approaching this Hon’ble Court for the relief claimed in this writ
petition.
6.6 The
Petitioners have not challenged the validity of any State or Central enactment
in this writ petition.
6.7 The
petitioners have presently not filed any writ or any other proceedings before
any court of law nor are their any proceeding or suit pending before any court
of law in respect of the relief claimed in this writ petition.
6.8 Petitioner
makes this prayer, inter alia, on the following grounds:
Grounds
I.
The said project is in fundamental violation of the law as
the same is being initiated without conforming to the standards prescribed in
the Aircrafts Act, National Building Code of India, “International Standards
and Recommended Practices for Aerodromes” developed by the International Civil
Aviation Organisation, to which India is a contracting State.
II. That the
relevant authorities are continuing to place public life and resource at a
great risk in as much as not conforming, in specific terms, with the relevant
standards as per law for the said project, and thereby developing a critical
infrastructure such as an airport, by compromising high standards demanded.
III. The said
project is being initiated without any application of mind as the same lacks a
feasibility study, a minimum requirement to justify the creation of such a
sensitive facility at enormous public expense. Further, the authorities while
initiating the project have not taken into consideration relevant factors and
considered irrelevant factors. In view
of the same, the actions of the relevant authorities in initiating the project
are wholly without jurisdiction.
IV. Admittedly,
the relevant authorities have resorted to distorting facts and making illegal
amends; for instance the contradictory claims of R-2 with regard to the project
development. This clearly is in
dereliction of their duties and calls to question if the relevant authorities
are being influenced by extraneous factors in performing so.
V. Article
48A of the constitution enjoins upon the State to make every endeavor to
protect and improve the environment.
Art.21 of the constitution guarantees right to life which, it is well
settled, means a quality of life free from the hazards of pollution, accident
and without depriving the right to livelihood.
In view of the same the relevant authorities ought to have conducted a
Detailed Environment Impact Assessment and Environment Management Plan for the
said project. Admittedly no such study
has been done despite the requirement spelt out in the relevant acts,
notifications and guidelines. It is
respectfully submitted, therefore, that the State cannot be permitted to
disregard the aforementioned provisions of the Constitution of India merely to
favour the said project.
VI. Ever since
the initiation of the said project, the petitioners have sought the cooperation
and intervention of the relevant authorities in ensuring that the larger public
interest is not compromised, particularly the requirement for engaging public
consultation as laid down by law. In
advancing this cause the petitioners have made several representations,
memorandums, appeals, etc. Further,
several requests have been made to make available to the public various
documents for perusal and comment, and specifically hold “Public Hearings” for
the purpose of establishing public rationale for the said project in accordance
with the law. Despite which the
authorities have proceeded with the said project, failing to consider any of
the objections raised voluntarily by the petitioners in advancing the public
cause and also without conforming to the due processes and procedures as laid
down in by law. This amounts to the
respondents engaging in practices that are bad in law and against the
principles of natural justice.
From the facts and circumstances
narrated above, it is seen that the Respondents are proceeding with the said
project without complying with mandatory statutory requirements, and the
project, as presently conceive, is in abject violation of the law. Respondents are proceeding with this project
without any study regarding the techno-economic feasibility of the project or
its socio-economic and environmental impacts. Standards, notifications and
guidelines prescribed per the provisions of the various legislations, including
Aircrafts Act, the Bureau of Indian Standards Act, and Environment Protection
Act and other Acts would be fundamentally violated. If the Respondents are to proceed further, the right accrued in
favour of the Petitioners as well as the public at large will be defeated. From the petition, it may be observed that
the Respondents are proceeding in a lackadaisical manner in developing this
critical infrastructure project and appear to be playing at the cost of the
public exchequer. If the Respondents
were allowed to proceed with this illegal project, the present Writ Petition
and the Prayer sought would become in fructuous.
Considering that the Respondents
are presently rushing ahead in the initiation of this illegal project, which
would potentially have serious and adverse consequences to general public and
passengers, and that forceful possession of the said lands is being secured, it
has become essential for the Petitioners to raise the matter with this Hon’ble
Court on grounds of urgency. Hence
prayed for interim relief.
Prayer
Wherefore,
the petitioners pray that this Hon'ble Court may be pleased to –
i.
Issue a Writ of Mandamus or any other writ order directing
the respondents not to proceed with the said project except in accordance with
the law.
ii. Issue a
Writ of Declaration, declaring that the proposed project, i.e. construction of
2nd Runway and Terminal Tower in Mangalore Airport, is illegal and
compromising on the safety of passengers and the general public.
iii. Issue a
Writ of Mandamus or any other writ, order or direction, directing the
respondents to notify the differences in all the airports of the country to
ICAO under Article 38 adopted in the Convention of International Civil Aviation
(Chicago 1944) to which India is also a contracting State within a specified
time to be determined by this Hon’ble Court.
iv. Issue such
other writ, order or direction, as this Hon’ble Court deems fit and proper
under the circumstances of the case.
Interim Prayer
Pending
disposal of this writ petition, the Hon’ble Court may be pleased to restrain
the respondents from implementing the proposed new airport, i.e. the 2nd
Runway and Terminal tower, the said project, at Malavoor, Adyapady and Kolambe
villages of Mangalore Taluk, Dakshina Kannada district, and grant such other
and further relief as this Hon’ble Court deems fit and proper under the
circumstances of the case.
Bangalore Advocate/s
for Petitioners
Date:
Address
for Service.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Writ Petition No. 20905 Of 2002
BETWEEN
Arthur J.
Pereira and others .............Petitioner
And
Union of
India & others ............Respondents
AFFIDAVIT VERIFYING THE PETITION
I, Arthur
J. Pereira, son of late Thomas Pereira, aged 44 years, resident of Karambar,
Bajpe Post, Mangalore 574 142, do hereby solemnly affirm on oath and state as
follows:
1. I am the
first petitioner in this writ petition and am actively involved with various
public interest initiatives carried out by the petitioners and I am acquainted
with the facts of the case. I am
authorised to swear to this affidavit by the rest of the petitioners on their
behalf.
2. I say that
averments made in paras 1 to 6, inclusive of sub-paras, of the petition
accompanying this affidavit are true to the best of my knowledge and that made
in Grounds are based on information which I believe to be true.
I state
that Annexures A, B, C, D, E, F, G, H, J, K, L, M, N, P, Q, R, S, T and U are
true copies of the originals.
Bangalore.
Dated:
Identified
by: DEPONENT
Advocate
No. Of Corrections:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Writ Petition No.
20905 OF 2002
Between
Arthur Pereira and others ...............Petitioners
and
Union Of India And Others ...........Respondents
INDEX
|
Sl. No. |
Description |
Page No. |
|
1. |
Cause Title |
|
|
2. |
List of Dates |
|
|
3. |
Memorandum of Writ Petition |
|
|
4. |
Verifying Affidavit |
|
|
5. |
Annexure A: Copy
of this Hon’ble Court’s Judgement in Writ Petition 37681/1997 dated 18
November 1998 |
|
|
6. |
Annexure B: Copy
of Brochure on Mangalore Airport issued by Airport Authority of India |
|
|
7. |
Annexure C: Copy
of the notice issued by Tahsildhar of Mangalore Taluk regarding Final
Eviction, dated 23 April 2002 |
|
|
8. |
Annexure D: Topographical Map of the proposed Project area
and surrounding region, detailing project features and approach funnels |
|
|
9. |
Annexure E: Copy of the Statement of Objections filed by 2nd
Respondent, Airports Authority of India, in W. P. No 37681/1997 |
|
|
10. |
Annexure F: Copy of the Notification of the Ministry of
Civil Aviation, No. S. O. 988, dated 5th January 1988 |
|
|
11. |
Annexure G: Copy of Relevant Extract of Annex 14 of
International Civil Aviation Organisation |
|
|
12. |
Annexure H: Copy of the Notification of the Ministry of
Environment and Forests regarding Municipal Solid Waste Management issued on
25 September 2000 |
|
|
13. |
Annexure J: Copy of the Relevant Extract from the National
Building Code of India |
|
|
14. |
Annexure K: Copy of the Representation made by the 1st
Petitioner to the Commissioner of Mangalore Mahanagara Palike, dated 30
October 2001, regarding solid waste landfills close to the airport |
|
|
15. |
Annexure L: Copy of the Relevant Extract from the
Environment Impact Assessment of Mangalore Refineries and Petrochemicals
Ltd., detailing its distance to the airport |
|
|
16. |
Annexure M:
Representation made by the 3rd Petitioner to the 2nd
Respondent, Chairman, Airport Authority of India, dated 25 August 1996 |
|
|
17. |
Annexure N: Response obtained from 2nd
Respondent Director, Air Routes and Aerodromes (Plng.), Airports Authority of
India, dated 25 September 1996 |
|
|
18. |
Annexure P:
Response of 2nd Respondent, Dep. Director (Plng.), Airports
Authority of India, dated 18 September 1997 |
|
|
19. |
Annexure Q: Copy
of the Notification of the Ministry of Environment and Forests regarding
Environment Impact Assessment |
|
|
20. |
Annexure R: Copy of
Representation submitted to 4th Respondent by the 1st
Petitioner regarding Public Hearing, dated 16 July 1997 |
|
|
21. |
Annexure S: Copy
of Representation submitted to 4th Respondent by the 1st
Petitioner regarding, dated 01 September 1997 |
|
|
22. |
Annexure T: Copy
of the Application made by 1st Petitioner to the 5th
Respondent, seeking copy of Executive Summary of the proposed project, dated
30 October 2001 |
|
|
23. |
Annexure U: Copy
of the Response of the 5th Respondent to the 1st
Petitioner’s representation, dated 09 November 2001 |
|
|
24. |
Vakalatnamas |
|
Bangalore Advocate/s
for Petitioners
Date:
Address
for Service.