Sand mining under guise of flood control? Kerala High Court constitutes committee for Thottappally spillway

The Kerala High Court recently directed the State government to implement a robust, ecology focused mechanism to monitor and regulate sand and soil removal at the Thottappally Spillway in Alappuzha [Green Roots Nature Conservation Forum & anr v Government of India & ors and connected case]. .A Division Bench comprising of Chief Justice Nitin Jamdar and Justice Syam Kumar VM emphasised that flood control measures cannot be pursued at the cost of environmental destruction."The ecological impact of the activity cannot be lost sight of and deserves to be taken heed of especially since the area falls within the jurisdictional ambit of the Kerala Coastal Zone Management Authority," the Court observed in its judgment..Accordingly, the Court directed the Chief Secretary of Kerala to constitute, within two months, a committee headed by the Alappuzha District Collector with senior level officers/experts from the Irrigation/Water Resources Department, Forest and Wildlife Department, Kerala Coastal Zone Management Authority, Purakkad and Thakazhy Grama Panchayats, and a locally active environmental NGO. The committee is to assess ecological impacts, determine permissible quantities and monitor future sand or soil removal at the Thottappally spillway..The order was passed on two connected petitions which challenged flood control measures ordered by the Alappuzha District Disaster Management Authority under Section 30 of the Disaster Management Act, 2005 (Act)..In 2019, the Alappuzha District Collector issued an order proposing the removal of accumulated sand and soil from the Thottappally spillway.The spillway was constructed to facilitate the free flow of flood waters from the Pamba, Manimala and Achankovil rivers and spill excess water into the Arabian Sea in order to mitigate flooding in the Kuttanad region.Environmental groups and residents stated that what was projected as a disaster management measure had, in practice, become a recurring mineral sand mining operation with serious ecological consequences..It was pointed out to the Court that the spillway mouth and the adjoining beach fell within an ecologically sensitive zone protected under the Coastal Regulation Zone (CRZ) framework, which was classified as a turtle nesting habitat, used by endangered species like Olive Ridley and Hawksbill Turtle as nesting grounds.The petitioners stated that repeated sand removal had disturbed the natural beach profile and triggered erosion, posing threats to these marine species.The District Collector, however, maintained that the sand accumulation and the trees obstructing the spillway were man-made and removal of the same was essential to prevent flood in the Kuttanad region.The State asserted that sand removal as a measure to prevent flood fell within the Act and was being carried out annually under supervision, where the mineral sand extraction had been entrusted only to public sector undertakings, including Kerala Minerals and Metals Ltd (KMML)..The Court took note of the reports on the sand removal process and observed that the assessments were limited to quantity control by engineering departments and that there was no mechanism to assess the biodiversity loss or shoreline degradation.It relied on a joint report submitted by the Assistant Conservator of Forest, Social Forestry at Alappuzha and the Member Secretary of Kerala Coastal Zone Management at Thiruvananthapuram which confirmed that prolonged sand removal had altered the natural beach profile, caused erosion and disturbed the coastal ecology. Pertinently, it warned that the continued sand mining posed a 'clear and present danger' to the turtle nesting grounds.The Court noted that while Section 30 of the Act empowers the district collector to order sand removal as a flood control measure, it emphasised that the manner of implementing such measure must be ecologically sustainable.It said that even though a monitoring committee chaired by the deputy collector was envisaged under the existing framework, the absence of an ecological expert reduced the sand removal process to a mere regulatory permission."Thus, the necessity of protecting the ecology though not totally lost sight of in Ext.P5, the modalities and means of achieving the said object while implementing the directions are lacking in Ext.P5. The absence of an ecological expert in the committee makes the process of sand removal as envisaged by Ext.P5 order a mere regulatory permission," the Court added.The Court, therefore, ordered the constitution of the committee. It also made it clear that any activity in the spillway should be carried out only after obtaining inputs from the committee. .The petitioners were represented by advocates V Mangala, Thomas M Jacob, Akhil K Madhav, V Prasanth, Liju C Stephen, Indu Susan Jacob, Taj K Tom and Abhijith U.Senior Government Pleader PG Pramod, Special Government Pleader Nagaraj Narayanan and Standing Counsel MP Prakash appeared for the Kerala Coastal Zone Management Authority.Advocate MP Sreekrishnan appeared for State Environment Impact Assessment Authority.Kerala Minerals and Metals Ltd. was represented by advocate S Vishnu (Arikkattil)..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.