Kerala High Court rejects Kudale Committee's report on Vizhinjham port coastal erosion; orders fresh panel

In a verdict of significant importance to coastal environmental concerns, the Kerala High Court on Friday set aside the study report of an expert committee headed by MD Kudale on the coastal erosion allegedly caused by the construction of Vizhinjam International Seaport [Nirmala Johny & ors v State of Kerala & ors].

Justice Harisankar V Menon held that the committee's constitution was flawed due to concerns over conflicts of interest involving its members and directed that its final report should not be acted upon.

"This Court is of the opinion that the challenge against the constitution of the Committee pursuant to Ext.P11 Government Order and the opinion of the Committee, raised by the petitioners is only to be accepted," the Court stated.

It particularly noted that Kudale had earlier served as an expert member of the technical sub-committee which was involved in developing the Vizhinjam Port project.

"If, as a matter of fact, he was so engaged, this Court is of the opinion that inclusion of Sri.Kudale in the Committee constituted pursuant to Ext.P11 Government Order ought to have been avoided. As already noticed, the earlier involvement of Sri Kudale is not disputed by any of the respondents," the Court said.

Hence, it directed the State government to constitute a fresh independent expert committee to study the alleged coastal erosion due to the establishment of the deep water port.

The judgment came on a petition filed by 128 residents of fishing villages situated within 20 km north of Vizhinjam, who claimed that construction of the port had caused severe coastal erosion, resulting in the loss of their homes.

They challenged the expert committee constituted by the Kerala government in October 2022 to examine whether port construction had contributed to coastal erosion and whether measures can be taken to address it.

The four-member committee was headed by MD Kudale, Former Additional Director, Central Water and Power Research Station (CWPRS), Pune. Its other members were Dr Riji John, Dr Tejal Kanitkar and Dr PK Chandramohan.

The petitioners argued that the committee lacked independence because some members had professional associations with the port project or the companies connected to it.

Apart from Kudale's involvement, they flagged Dr Chandramohan's association with Navayuga Engineering Company, which had jointly incorporated another company named Vijayawada Bypass Project with Adani Enterprises.

The Court noted that these professional associations had not been denied by the respondents.

Another significant issue was the contradiction between Kudale's earlier scientific research and the committee's findings.

In a published paper titled 'Impact of Port Development on the Coastline and the Need for Protection,' Kudale had acknowledged that constructing breakwaters and dredging navigation channels could disrupt natural movement of sand along coastlines, resulting in accumulation on one side and erosion on the other.

However, the committee's report attributed coastal erosion substantially to natural factors, including Cyclone Ockhi and high-wave activity.

The Court took note of this contradiction while clarifying that it was not examining whether the committee's scientific conclusions were correct.

The State government defended the committee's constitution, arguing that previous involvement of experts in infrastructure projects did not automatically establish personal interest or bias.

The government submitted that a separate committee, which was constituted pursuant to the National Green Tribunal's directions, was already monitoring shoreline changes and therefore, the Kudale committee report could be ignored.

The Court, however, found sufficient grounds to interfere with the committee's constitution.

It held that the existence of another monitoring committee did not justify ignoring concerns about the independence of the state-appointed committee.

It also noted that the committee had conducted only one inspection at Vizhinjam on May 23, 2023, before submitting its report.

The Court, thus, declared that the committee was not properly constituted and set aside its final report, making it clear that the government could not rely on its findings.

It ordered the State government to constitute a fresh independent committee and ensure that its members have no conflict of interest, after considering the views of all stakeholder.

Advocate Prashant Bhushan along with advocates Ajit Joy, Sayujya Radhakrishnan and Aneesh James appeared for the petitioners.

State Attorney Anoop V Nair represented the state.

Advocates Merline Mathew and Roshen D Alexander appeared for Vizhinjam International Seaport Limited and Adani Vizhinjam Port Private Limited respectively.

[Read Judgment]