Writ Petition No. 37681 of 1997
Arthur J. Pereira
S/o Late Thomas Pereira
aged 40 years
Mangalore 574 142
Rev. Fr. Ronald D’souza
Aged 37 years
Mangalore - 574 142
Dalita Sangarsha Samithi
Dakshina Kannada District Unit
Sunder Ullal, Kapikad
3rd Floor, Pereira Hotel
Opp. Govt. College
Mangalore 575 001
Represented by its District Convenor
S/o Late Angara
aged 35 years
R/o Malavoor Padavu
Kenjar Village & Post
Mangalore Taluk - 574 142
S/o Venkatesh Bhat
aged 50 years
Adyapady Adinatheshwara Temple
Adyapady Village & Post
Mangalore 574 142
Yuva Vedike (R)
Adyapady Adinatheshwara Temple
Mangalore 574 142
Represented by its Secretary
G. I. Sheikabba
A/o Late Iddine Byari
aged 39 years
President, School Betterment Committee
Adyapady Hr. Primary School
Mangalore 574 142
S/o Late Abdul Kadar
aged 54 years
President, Thakviathul Islam Madrasa
Gandhi Katte, Adyapady
Mangalore 574 142 .......Petitioners
1. Union of India
Ministry of Civil Aviation
R. G. Bhavan
22 Akbar Road
New Delhi 110 001
Represented by its Director General
Airports Authority of India
R. G. Bhavan
New Delhi 110 003
State of Karnataka
M. S. Building
Dr. Ambedkar Veedhi
Bangalore 560 001
Represented by its Secretary
Ministry of Environment and Forests
New Delhi 110 003
Rep. by the Secretary to the Government of India
Karnataka State Town and Country Planning Board
M. S. Building
Dr. Ambedkar Veedhi
Bangalore 560 001
Represented by its Director
Karnataka State Pollution Control Board
Public Utility Building
M. G. Road
Bangalore 560 001
Represented by its Member Secretary
The Deputy Commissioner
Dakshina Kannada District
Mangalore 575 001
Central Pollution Control Board
East Arjuna Nagar
Dept of Ecology, Environment and Forests
Government of Karnataka
M. S. Building
Bangalore 560 001
Rep. by the Principal Secretary
10. Zilla Panchayat
Dakshina Kannada District
Mangalore 575 001
Rep. By its Chief Executive Officer
Mangalore Urban Development Authority
Represented by its Commissioner
Mangalore Mahanagara Palike
Represented by its Commissioner .......Respondents
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 is also spearheading the opposition to the said project as the Secretary of the Vimana Nildana Vistharana Virodhi Samithi.
1.2 The 2nd Petitioner is the Parish Priest of Mariapura Church, Adyapady. In addition to performing his priestly duties, he is deeply involved in a variety of socio-economic development activities amongst all communities in the villages of Kenjar, Malavoor, Adyapady and Kolambe. He has initiated a variety of innovative programmes in building social consciousness and holding literacy campaigns for the illiterate and downtrodden people. He is the President of the the Vimana Nildana Vistharana Virodhi Samithi.
1.3 The 3rd Petitioner is an organisation that is commitedly 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.
1.4 The 4th Petitioner is the District organising Convenor of the 3rd Petitioner who as an individual has been campaigning against the said project and is a resource person on cultural and literacy programmes.
1.5 The 5th Petitioner is the Archak of Adinatheswara Temple, Adyapady, and is actively involved along with the 2nd Petitioner in educating and creating awareness amongst the illiterates.
1.6 The 6th Petitioner is an organisation working for various public interest causes, especially in aspects of propomoting communal harmony and education and training of the youth.
1.7 The 7th Petitioner is the President of the School Betterment Committee, Adyapady Higher Primary School and is campaigning against the said project as it would seriously disturb the education activities of the school and adversely affect the health of the children studying in the school.
1.8 The 8th Petitioner is the President of the Thakviathul Islam Madras, Badriya Masjid, Adyapady, which caters to the religious needs of the Muslim community of the locality.
1.9 All the petitioners, therefore, have a common cause, that is to work in the public interest and ensure that all developments are accomodated in a manner that is not detrimental to society.
1.10 Petitioners are presenting this petition and prosecuting the matter in public interest and are not seeking any personal benefit or relief for themselves.
Facts of the case
2. Existing Airport:
2.1 That there is an existing airport near Bajpe about 20 kms. from Mangalore city by road, and that the same was developed in 1953 to cater to the needs of flight movements of Dakota planes and later modified to accomodate flight movements of Avro and Boeing 737 planes. This is a table-top airport with a run-way strip of 1,700 metres approximately, and is considered one of the most dangerous airports in the world, as it is surrounded by hillocks on the eastern and western sides, limiting the possibility of safe flight movements.
2.2 This airport witnessed an accident when an Avro plane over ran the runway in about the year 1983, and fortunately the plane stopped at a rock beyond the runway on the slope of the table-top and major disaster was averted. The petitioners have produced a relevant picture of this accident from the Kannada Weekly “Taranga” dated 25 September 1994 and the same is shown in Annexure A.
3. New Airport Proposal for Mangalore:
3.1 It is now proposed to build another airport stretching east to south-west encompassing Kolambe, Adyapady and Malavoor villages, hereinafter referred to as the said project. This is once again being developed as a table-top airport, about 100 metres above sea-level. The proposed runway length is 2980 metres, and the width of the airstrip, by and large, does not exceed 200 mts. The location is surrounded by steep hillock drop all around, except on the north-eastern side. A rough sketch of the proposed location is produced as Annexure B.
3.2 The said project is proposed to be developed to enable, specifically, flight movements of the AB-320 class of aircrafts, and at the request of the Chamber of Commerce and Industry backed by the Government of Karnataka.
4. Concerns expressed over the New Airport Proposal
4.1 Soon as the petitioners became aware of the said project, they have raised serious objections to the same in the public interest, by making a representation to the Prime Minister of India on 16 January 1989 and the said represenation is produced at AnnexureC. Subsequently, a dharna was held on 06 November 1989 by the project affected communities in front of the Deputy Commissioner’s office at Mangalore to voice their protests against the said project. Regardless of which the Spl. Deputy Commissioner, Dakshina Kannada District initiated proceedings to acquire land to the extent of 172.5 acres for the said project at Adyapady, Malavoor and Kolambe villages under Sec. 4 (1) of the Land Acquisition Act. 1894 by a notification in the Karnataka Gazette dated 19 November 1989. However, from this time onwards there was absolutely no clear picture available as to the Government’s seriousness in pursuing with the said project, even as the project affected communities are continuously being threatened with displacement by a very haphazard and unjust process of the ongoing acquisition proceedings.
With the advent of the nineties, it was assumed, by and large, that the Government
had abandoned the project given that no perceivable development was observed.
However, during 1994, there was news that the Government was once again pursuing
the said project seriously and the affected communities, along with several
of the petitioners, formed a delegation and approached Mr. Oscar Fernandes,
Member of Parliament (local constituency) to voice their protests against the
project. During this meeting, Mr. Fernandes requested the delegation to withdraw
the protest as the proposed airport was to be relocated at Padubidri as per
an official statement to this effect made by the then Chief Minister of Karnataka.
On this assurance the ongoing protest was withdrawn against the said project,
and the project affected communities hoped that the land acquisition proceedings
would be withdrawn.
4.3 During 1996, there was news that the Government would once again pursue with the project at the same location, in a total reversal of the assurance made previously by the local MP and the Chief Minister of Karnataka. At this stage several of the petitioners, along with the project affected communities, were compelled once again to launch their protests against the said project in the public interest, and the details of this process is set out forthwith.
4.4 On 01 July 1996, the 2nd petitioner along with the village unit of the 3rd Petitioner, and the 8th Petitioner submitted a memorandum to the Civil Aviation Minister addressing, at length, the lacunae in locating the said project at the present location and proposing that, in the light of the technical objections raised and in safeguarding the public interest, locating the airport alternatively at Padubidri would be a more safer option. The petitioners have produced a true copy of the memorandum at Annexure D.
4.5 Further, on 16 July 1997, a letter was written to the Secretary, Union Ministry ofr Environment and Forests (R-4) by the 1st Petitioner requesting for a Public Hearing for the said project in accordance with the law, more specifically the EIA Notification 1994 and subsequent amendments. However, there was no response to this. The petitioners have produced a true copy of the memorandum at Annexure E.
In pursuance of the matter, the 2nd Petitioner submitted an exhaustive memorandum
dated 25 August 1996to 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 2nd
Petitioner to the 2nd Respondent is produced at Annexure F. A response to this
was obtained from Mr. 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 G. The relevant extracts
from this letter are quoted hereunder:
“A demand for the upgradation 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.”
However, when the same authority was approached by the 2nd petitioner on 25
August 1997, with the request to obtain a copy of the feasibility report for
the said project, they obtained the following response on 18 September 1997
from Mr. P. B. Daswani, Dy. Director (Plng.), Airports Authority of India, and
the petitioners have produced a true of the letter as Annexure H. The relevant
statements from which are quoted herunder to point out that from one and the
same authority there are divergent positions as regards a matter of such crucial
“AAI will prepare the detailed feasibility report for the project in due course, but has not done so yet.”
4.8 Parallelly, the 4th Respondent sought to enquire in a letter written to the Assistant Commissioner, Mangalore whether the State Government had approved of the award for the land acquisition for the said project. In his response dated 27 August 1997, the Asst. Commissioner categorically stated that such a document was priveleged information, and a true copy of this letter is produced as Annexure J. In other words, on a matter of such crucial importance in relation to the said project, the consequences of which would have an extremely adverse socio-economic and cultural impact on the affected communities, whether directly or indirectly, the relevant authority was not in the least bothered to state if indeed the due process had been followed in the interest of justice.
4.9 When even at such a late stage it was not clear what the status of the project was, given the above facts, the 1st Petitioner sought to establish if any of the other relevant agencies, including local elected bodies, were aware of the developments pertaining to the said project. In pursuance of this objective, a letter was written on 25 August 1997 to respondents nos. 7, 10, 12 and the local Gram Panchayat seeking to find out if they were in possession of an Executive Summary of the project document which the petitioner wished to obtain in accordance with the law. The petitioners have produced the said correspondence at Annexure K-1 to K-4. Except the 12th Respondent, who has failed to respond, the rest have submitted that none of them are in possession of any specific information with regard to the project. The petitioners have produced the said correspondence at Annexure L-1 to L-3.
4.10 The 1st Petitioner further sought to find out from the Ministry of Environment and Forests (R-4) if the requisite environmental clearances had been obtained for the project, as per the Environment Protection Act and EIA Notification, and whether a Public Hearing had preceded the clearance process, by writing a letter on 01 September 1997. A true copy of the said letter is produced at Annexure M. However, no response has been obtained so far.
4.11 When the petitioners continued to be in the dark with regard to the status of the project, it was perceived by the 4th Petitioner that if there was indeed a project, the same should have proceeded only on the basis of a Feasibility Study and the requisition for land acqusition from the Airport Authority, and therefore made an application to the relevant authority, i.e., the Asst. Commissioner, Mangalore on 16 August 1997 in this regard. In his response of 04 September 1997, the Asst. Commissioner stated that the requested document was not to be provided as per the law, without stating whether the same was in his possession at all. The same is produced as Annexure N.
4.12 Finally, having exhausted every opportunity of ascertaining what the mind of the Government was with regard to the said project, some of the petitoners were constrained to make a representation on 07 November 1997 to Mr. C. M. Ibrahim, Minister for Civil Aviation, Govt. of India, setting out in detail their objections to the said project, including that the airport was being developed without conforming to the fundamental technical requirements as per the binding rules of the International Civil Aviation Organisation, a global monitoring agency for the development and performance of safe airports. A copy of the same is produced as Annexure P.
4.13 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 an almost lackaidaiscal 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. But 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 “National Building Code of India” as per the Bureau of Indian Standards Act, the relevant true extract of the same is produced at Annexure Q, and the “International Standards and Recommended Practices for Aerodromes” of the International Civil Aviation Organisation to which India is a contracting party, the relevant true extract is produced at Annexure R.
5. Violations of the ICAO standards and recommendations:
5.1 The Convention on International Civil Aviation which met in Chicago as far back as in 1944 evolved a system of standardising flight movements, air safety norms and evolved standards for the building and maintenance of airport infrastructure. As a part of this Convention the International Civil Aviation Organisation (ICAO) was formed as a body for setting standards and monitoring compliance of the same by various contracting parties. In the event of impossibility to adopt to the standards and recommendations, a notification has to be compulsorily made by the contracting country under Article 38 of the Convention. India is a signatory to the Convention and is, thereby, bound by ICAO’s standards and recommendations in every regard.
Annex 14 of the ICAO’s “International Standards and Recommended Practices for
Aerodromes” pertains to details of Aerodrome Design and Operations (cf. Annexure
R). The present airport fundamentally violates the prescribed standards and
is hopelessly below the recommendations proposed. Some significant violations
are articulated thus:
5.2.1 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 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
(cf. Annexure B), 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.
5.2.2 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.
5.2.3 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 side 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 would be that the plane will come crashing down the hillsides from an height of 80-100 metres on either side of the proposed runway.
In the supplementary section of Annex 14, the Guidance Material prescribes standards
that have to be conformed in siting of airports. In specific, it refers to the
a) Compliance with obstacle limitation surfaces
b) Current and future land use. The orientation and layout should be selected so as to protect as far as possible the particularly sensitive areas such as residential, school and hospital zones from the discomfort caused by aircraft noise.
c) Current and future runway lengths to be provided, etc.
From the features of the location proposed in the instant case, it may be immediately observed that the location is unsuitable as per the above mentioned standards for the following reasons:
22.214.171.124 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 including the 2.2 mtpa JESCO Steel Plant, three barge mounted power projects, Grasim textiles unit, paints manufacturing unit by Asian Paints Ltd. 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. Furthermore, a huge resort has already been developed by Dekkan Park Pvt. Ltd., the structures of which rise to an height that directly encroach upon the “approach surface obstacle limitation area”.
126.96.36.199 Current and future land use: This standard has been fundamentally violated as the proposed airport is coming up in a region where there are several densely populated residential colonies including the Adyapady residential colony and the Kunjatbail residential colony, and the only school of the area, i.e. Adyapady Higher Primary School, is just about 50 metres away from the proposed fencing. With the development of an airport there emerges the creation of various non-commercial and commercial facilities, for which there is absolutely no possibility in the present location.
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 statue,
as then the landings of wide bodied cargo and passenger aircraft will be the
order, and the proposed runway and location will not cater to such requirements.
5.3 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:
5.3.1 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 land form is an 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.
5.3.2 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 upto 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.
5.3.3 Recommendation No. 9.5.3: “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.” 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.
6. Violations of the NBC Standards:
6.1 The National Building Code of India was formulated in 1983 under the Indian Standards Institution Act of 1952, later comprehensively amended providing statutory recognition to the aforementioned Code by the Bureau of Indian Standards Act, 1986. It comprises of a detailed list of standards that have to complied with 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 R-1, 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".
6.2 In Chapter 9.5 of page 16 of the NBCreferring 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 which the instant case fundamentally flouts are quoted and the manner in which the same are violated is articulated hereunder:
6.2.2 Standard 188.8.131.52 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 an highly industrialised region comprising of industries emitting high quantities of smoke and dust, thereby fundamentally violating this standard.
6.2.3 Standard 184.108.40.206 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.
6.2.4 Standard 9.5.3 on Page 16 of the NBC: “Butcheries, tanneries, and solid waste disposal sites shall not be permitted within 10 kms. from the aerodrome reference point.” As has been adverted to earlier, the said project will not be able to comply with this standard, as the Pacchanady solid waste disposal site is hardly 3-4 kms aerial distance from the proposed location and since the same is not scientifically managed at all, attracts a lot of vultures and kites that threaten even the present flight movements with high risk of bird hits.
6.2.5 Standard A-1.3.2 on page24 of the NBC: “Operational boundary means an area enclosed between parallel lines at a distance of 152.4 metres on either side of the centre line of the runways, or 30.4 metres from the boundary fencing of the aerodromes, whichever is greater.” As adverted to earlier, the proposed location is wholly unsuitable as it has a maximum width of 200 metres, thereby falling short of the minimum required width by over 100 metres.
6.3 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.
6.3.1 Standard 220.127.116.11 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 caried 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.
7. Environmental and Planning criteria for the siting of Airports:
7.1 The said project is in flagrant violation of the Environment Protection Act and the rules laid thereunder as the same is being initiated without the requisite environmental clearance from the Ministry of Environment and Forests. In specific terms, the said project summarily violates the Environment Impact Assessment Notifications a true copy of the said notification has been produced as Annexure S. As mandated by this notification, no Detailed Environment Impact Assessment has been conducted or Environment Management Plan prepared, and also no Public Hearing has been held. Further, as per the Water and Air Acts, it is mandatory for airports to obtain a No Objection Certificate from the Karnataka State Pollution Control Board, and the same has not been conformed to. Also, as per the Guidelines issued by the Ministry of Environment and Forests for the Siting of Industries, a true copy of which has been produced as Annexure T, airports cannot be located within 25 kms of highly industrialised areas as is the case in the proposed location for the said project.
7.2 With specific reference to the ecological sensitivity of the Dakshina Kannada district, the State Government has passed an order on 29th December 1995, in which it has specifically declared that a “carrying capacity” of the the district will be conducted prior to locating mega industries and projects in the district. The said project is being advanced in violation of this order, since it is being initiated without considering the findings of the “carrying capacity” study. A true copy of the said Govt. Order is produced as Annexure U.
7.3 From the point of view of regional development it is necessary for airports as infrastructural developments to obtain clearance from the Karnataka Town and Country Planning Board and the relevant local bodies, such as the Mangalore Urban Development Authority, the Mangalore City Corporation and the Dakshina Kannada Zilla Panchayat as per various provisions of the Karnataka Town and Country Planning Act, and the Constitutional 73rd and 74th Amendments read along with their conforming legislations and schedules. In the instant case, none of these provisions in law have been conformed with.
7.4 In light of the above, the petitioners submit that the said project is being developed in flagrant violation of the environmental and planning legislations of the country. Unnecessary and unjust displacement is being caused of those communities that are directly affected as the same is being done without any application of mind whatsoever. For those that are not directly affected the project will cause disturbance and nuisance unnecessarily, due to wrong choice of location. Most importantly, the project is being initiated in a location that is most dangerous and unsuited for the purpose, and is thereby a direct threat to the life and livelihood of those that are directly or indirectly affected.
8.1 The petitioners wish to humbly submit to this Honourable Court, that the project has been initiated merely on political and extraneous considerations and without sufficient study of the need for the said project. Therefore, the question that immediately arises is if there is a project at all, as admittedly the relevant authorities are yet to initiate the Feasibility Study.
Also the choice of location seems to have been pre-determined by extraneous
considerations as in the instant case there is no evidence whatsoever that the
respondents have identified a choice of locations, as is required, prior to
identifying the proposed location, taking into cognisance the comparative advantage
from all points of view. That the relevant authorities have purportedly ignored
this obvious requirement owing to extraneous considerations and pressures is
most evident by a demonstration by an alternate location within the vicinity
itself (cf. Annexure B). This alternate location is most well suited and conforming
with the requisite standards and recommendations for airports, given that the
land use of the region is maintained as per the Comprehensive Development Plan
for the Greater Mangalore Area developed by R-11, and changed only to the extent
of accomodating the said project. The petitioners wish to bring to the attention
of the Court that this alternate location, in the very least, has the following
8.2.1 That it has sufficient length, width, access and spatial spread to conform with all the requisite standards both from the point of view of Annex 14 and the NBC.
8.2.2 That the displacement caused in the alternate location will be far less, i.e. of only about 70-80 families, even if the runway length is to be extended at a later day to 3,600 metres to enable landings of wide bodied aircrafts such as Boeing 747’s.
8.2.3 The landforms in the alternate location, are more suitable for the purposes of related developments including commercial and non-commercial facilities that normally benefit from the existence of an airport.
8.2.4 Ease of access in case of emergencies.
9. Violation of Article 38 of International Convention on Civil Aviation
In advancing the larger public interest the petitioners also wish to submit
to this Honourable Court that, as in the instant case, the respondents Nos.
1 and 2 have been discharging their duties and obligations failing to sufficiently
address all the required norms and procedures and without conforming with the
law in various respects. This assumes enormous significance as an airport is
an extremely sensitive infrastructure and operation and given the fact that
India has suffered from several avoidable air mishaps leading to the loss of
hundreds of precious lives in the recent past and causing an unnecessary and
extraodinary burden to the public exchequer. With the express intention of ensuring
that the creation of airports and the facilitation of air travel is made safe
and secure from all points of view that the ICAO has made it compulsory for
all contracting countries to comply with the requirements as per Article 38
of the International Convention on Civil Aviation, which states as follow:
“Any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognised as necessary for the safety or regularity of international air navigation and to which contracting states will conform in accordance with the convention; in the event of impossibility of compliance, notification to the council is compulsory under Article 38.”
9.2 India, despite being a contracting state to the Convention, has not complied with the provisions of Article 38, thereby calling to question the extent to which Indian airport facilities and operations stray from the safety or regularity of internationally accepted standards. If in the very least, this amounts to gambling with human lives.
10. In the light of the above, the petitioners have no other equally efficacious remedy other than approaching this Honourable Court for the relief claimed in this writ petition.
11. The Petitioners have not challenged the validity of any State or Central enactment in this writ petition.
12. The petitioners have not filed any writ or any other proceedings before any court of law nor is their any proceeding or suit pending before any court of law in respect of the relief claimed in this writ petition.
13. Petitioner makes this prayer, inter alia, on the following 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 “National Building Code of India” as per the Bureau of Indian Standards Act and the Annex 14 of the “International Standards and Recommended Practices for Aerodromes” developed by the International Civil Aviation Organisation, to which India is a contracting State.
II. 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.
III. 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 and R-7 with regard to denying the request of the petitioners to furnish documents within the public domain based on irrelevant factors. This amounts to a dereliction of their duties and calls to question is the relevant authorities are being influenced by extraneous factors in performing so.
IV. Article 48A of the constitution enjoins upon the State to make every endeavour 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 and carried out the carrying capacity study so as to assess the environmental feasibility of the project in the particular area. 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.
V. 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 by violating the due procedures and requirements for engaging public consultation as laid down by law. In 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.
VI. 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 in general, not complying with the compulsory requirements as per Article 38 of the International Convention on Civil Aviation, adverted to earlier.
VII. That the relevant authorities have failed to take into consideration all the relevant factors, especially the long term impacts in the region, owing to the creation of such a facility, in as much as it violates the Karnataka Town and Country Planning Act, as no public consultation has preceded the project, the Karnataka Urban Development Authorities Act, as the project is being developed in contravention to the Comprehensive Development Plan for the Greater Mangalore Area and the Constitutional 73rd and 74th Amendment Acts, as the said project is proceeding without regard to involving and addressing the concerns of the local elected bodies in specific as well as general terms.
14. Grounds for interim relief
In view of the fact that the said project has been initiated without a feasibility study, that the mandatory provisions of the various legislations, notifications, standards, guidelines, recommendations, etc. are violated including Environment Protection Act, the Bureau of Indian Standards Act, Water and Air Acts, the Karnataka Town and Country Planning Act, the Karnataka Urban Development Authorities Act, the Constitutional 73rd and 74th Amendments, it is not legal and proper for the respondents to proceed with the said project. Hence prayed for interim relief.
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 Prohibition or any other writ, order or direction prohibiting the respondents from proceeding with the said project without complying with Environment Protection Act, the Bureau of Indian Standards Act, Water and Air Acts, the Karnataka Town and Country Planning Act, the Karnataka Urban Development Authorities Act, the Constitutional 73rd and 74th Amendments.
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 ia also contracting State within a specified time to be determined by this Honourable Court.
iv. Issue such other writ, order or direction as this Honourable Court deems fit and proper under the circumstances of the case.
Pending disposal of this writ petition, the Honourable 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 Honourable Court deems fit and proper under the circumstances of the case.
Advocate/s for Petitioners
Address for Service.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
W.P.NO OF 1997
Arthur J. Pereira and others .............Petitioner
Union of India & others ............Respondents
AFFIDAVIT VERIFYING THE PETITION
I, Arthur J. Pereira, son of late Thomas Pereira, aged 40 years, resident of Karambar, Bajpe Post, Mangalore 574 142, do hereby solemnly affirm on oath and state as follows:
I am the first petitioner in this writ petitiona 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 12 of the petition accompanying this affidavit are true to the best of my knowledge and that made in para 13 and 14 thereof 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 & U are true copies of the originals.
Identified by: DEPONENT
No. Of Corrections:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
W. P. No. /1997
Arthur Pereira and others ...............Petitioners
Union Of India And Others ...........Respondents
Description Page No.
1. Memorandum of Writ Petition
2. Verifying Affidavit
3. Annexure A: Relevant Clipping from “Taranga”
4. Annexure B: Rough Sketch of the Proposed Location
5. Annexure C: Representation made to the Prime Minister, dated 16 January 1989
6. Annexure D: Representation made to Civil Aviation Minister, dated 01 July 1996
7. Annexure E: Representation made to Ministry of Environment and Forests, dated 16 July 1997
8. Annexure F: Representation made to the Chairman, Airport Authority of India, dated 25 August 1996
9. Annexure G: Letter from Director, Air Routes and Aerodromes (Plng.), Airports Authority of India, dated 25 September 1996
10. Annexure H: Letter from Dep. Director (Plng.), Airports Authority of India, dated 18 September 1997
11. Annexure J: Endorsement from Asst. Commissioner, dated 27 August 1997
True translated copy of the endorsement from Asst. Commissioner dated 27 August 1997
12. Annexure K: Applications for Executive Summary, dated 25 August 1997
13. Annexure L: Endorsement from relevant authorities with regard to compliance with EIA Notification, dated variously
True translated copies of the endorsements from relevant authorities with regard t the compliance with EIA Notification, dated variously
14. Annexure M: Letter to Ministry of Environment and Forests, dated 01 September 1997
15. Annexure N: Endorsement from Asst. Commissioner, dated 04 September 1997
True translated copy of endorsement from Asst. Commissioner, dated 04 September 1997
16. Annexure P: Representation to Civil Aviation Minister, dated 07 November 1997
17. Annexure Q: Relevant Extract of the National Building Code of India
18. Annexure R: Relevant Extract of the “International Standards and Recommended Practices for Aerodromes” of the International Civil Aviation Organisation (Annex 14)
19. Annexure S: EIA Notifications
20. Annexure T: Ministry of Environment and Forests Guidelines for siting of industries
21. Annexure U. Govt. Of Karnataka order on “carrying capacity” of Dakshina Kannada, dated 29 December 1997
Bangalore Advocate/s for Petitioners
Address for Service.
List of Dates
1987 - 1988 Demand for creation of a new airport to enable landings of AB - 320 class of aircraft put up by the Government of Karnataka and the Chamber of Commerce and Industry
16 January 1989 Representation is made to the then Prime Minister of India by the first petitioner against the proposal to develop a new airport near Mangalore (the said project) as the same is detrimental to the public interest.
06 November 1989 Dharna is held by the project affected community in front of the Deputy Commisioner’s office at Mangalore against the said project.
19 November 1989 Karnataka Gazette Notification under S 4 (1) of the Land Acquisition Act, 1894 by Spl. Deputy Commissioner, Dakshina Kannada District to acquire 172.5 acres of land for the said project at Adyapady, Malavoor and Kolamber villages.
October 1994 A delegation of the project affected communities led by some of the Petitioners met with Mr. Oscar Fernandes, Member of Parliament (local constituency) to protest against the said project, including unjust displacement. Mr. Fernandes requested the delegation to withdraw the protest as the proposed airport was to be relocated at Padubidri based on an official statement to this effect by the then Chief Minister of Karnataka. Based on this assurance the protest was withdrawn.
18 March 1996 A dharna is held by the project affected communities supported by some of the petitioners and various citizen action groups in front of the Deputy Commissioner’s office against the said project.
01 July 1996 A representation is made by some of the petitioners to Mr. C. M. Ibrahim, Minister for Civil Aviation, Government of India, against the said project on the grounds that the project is against the public interest as the same is being developed at a location that does not comply with safety regulations, and that the project will cause significantly adverse socio-economic impacts.
16 July 1997 A letter was written to the Secretary, Union Ministry for Environment and Forests (R-4) by the First Petitioner requesting for a Public Hearing for the said project in accordance with the law, more specifically the EIA Notification 1994 and subsequent amendments.
25 August 1996 A memorandum was submitted by the Second Petitioner to the Second Respondent quoting various technical reasons why the said project should not be developed at the proposed location.
25 September 1996 A letter is written by Mr. Jagannath, Director Air Routes and Aerodrammes (Planning), Airports Authority of India in response to a letter dated 25 August 1996 to the Second Petitioner stating that a feasibility study for the said project has been conducted by M/s RITES and that a demand for acquistion of 172.5 acres of land was placed before the State Government in the year 1987-88. Further, that any further pleas with this regard should be placed before the State Government.
25 August 1997 A letter was written by the Second Petitioner to the Second Repondent requesting to furnish a copy of the feasibility report for the said project on the basis of the letter of 25 September 1996 by the respondent.
25 August 1997 Applications were made by the First Petitioner to Respondent Nos. 7, 10, 12 and the village Panchayat requesting for the certified copy of the Executive Summary to the said project. This request is denied by R-7 by a letter dated 09 September 1997 without giving any clear reasons for the same. R-10 and the Village Panchayat responded on 16 September 1997 that the said document is not in their possession.
27 August 1997 A letter was written by the Assistant Commissioner, Mangalore on the basis of an applicationfor documents dated 20 August 1997 made by the Fourth Petitioner, stating that the copy of the approval letter to the award and the amended award cannot be provided as per the law.
01 September 1997 A letter was written to R-4 by the First Petitioner requesting for copies of Executive Summary, Environment Impact Assessment, Report on Public Hearing and Environmental Clearance Certificate granted to the Airports Authority in relation to the said project.
04 September 1997 A letter was written by the Assistant Commissioner, Mangalore on the basis of an application for documents dated 16 August 1997 made by the Fourth Petitioner, stating that the copy of the requisition letter of the “requesting authority” and the certified copy of the Feasibility study report prepared by M/s. RITES cannot be provided as per the law.
18 September 1997 A letter was written by Mr. P. B. Daswani, Dy. Director (Plng.), Airports Authority of India stating that the detailed feasibility study for the said project would be conducted in the due course as the same has not been conducted yet. Further, it has been stated that the Respondent would furnish any futher information on the said project on request.
08 November 1997 Representation is made by some of the petitioners to Mr. C. M. Ibrahim, Minister for Civil Aviation, Government of India against developing the said project at the proposed location stating various grounds including violation of technical criteria for development of airports, and socio-economic and environmental grounds. An alternate location to the proposed project which would minimise the advers impacts is also proposed with detailed schematic drawings.