(2013) 299 KLR 464

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR

&

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934

WA.No. 2865 of 2007 IN WP(C).29611/2007

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AGAINST THE JUDGMENT IN WP(C).29611/2007 DATED 08-10-2007

APPELLANTS/PETITIONERS:

-----------------------------

1. MANOHARAN T.B., AGED 38 YEARS, S/O.

T.G.BHASKARAN, THUNDIPARAMBIL, SOUTH PUTHUVYPU

PUTHUVYPU P.O.-682 508.

2. CHANDRAN M.K., S/O. KRISHNAN,

AGED 64, RESIDING AT MADATHIPARAMBIL HOUSE

OCHANTHURUTH P.O., PUTHUVYPU.

3. JAYAN P.N., AGED 38 YEARS, S/O.

NARAYANAN, PUTHUVALSTHALATHU, THEKKAN MALIPRAM

AZHIKKAL P.O.- 682 510.

4. K.L.VISWAN, AGED 38, S/O. LEKSHMANAN,

KOLAPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

PIN-682 508.

5. V.L.GOPALAN, AGED 33, S/O. LEKSHMANAN,

VADAKKETHERUVIL, THEKKAN MALIPURAM, AZHEEKAL P.O.

PIN-682 510.

6. P.G.RAJAN, AGED 57, S/O. GOVINDAN,

PUTHUVALSTHALTHU HOUSE, MURIKKUMPADOM, AZHEEKAL P.O.

7. K.G.NARAYANAN, AGED 59, S/O. GOVINDAN,

KANIYAMPARAMBIL, APPANGADU, NARAKKAL P.O.

PIN-682 005.

8. P.V.DINESAN, AGED 42, S/O. VELAYUDHAN,

PUTHUVALSTHALATHU, MURIKKUMPADAM, AZHEEKAL P.O.

9. P.B.VIJAYAN, AGED 50, S/O. BHAVAN,

PUTHUVALSTHALTH HOUSE, MURIKKUMPADAM, AZHEEKAL P.O.

10. T.G.VIJAYAN, AGED 53, S/O. GOVINDAN,

THAREPARAMBIL HOUSE, AZHEECKAL, AZHEECKAL P.O.

11. P.S.VENU, AGED 35, S/O. SANKARAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

12. P.K.SAJEEVAN, AGED 35, S/O. KRISHNAN,

PUTHUVALSTHATH HOUSE, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

13. P.G.ANU, AGED 30, S/O. GOPALAN,

PUTHUVALSTHALATH HOUSE, MURIKKUMPADAM, AZHEEKAL P.O.

14. P.B.BALAMURALI, AGED 35, S/O.

BALAKRISHNAN, PUTHUVALSTHALATHU, SOUTH PUTHUVYPU

PUTHUVYPU P.O.

15. P.S.SIVARAMAN, AGED 58, S/O. SANNALAN,

PUTHUVALSTHALATHU, THEKKENMALIPURAM, AZHEEKAL P.O.

16. P.S.LOHIDAKSHAN, AGED 56, S/O. SANNALAN,

PUTHUVALSTHALTHU, THEKKENMALIPURAM, AZHEEKAL P.O.

17. M.K.RAMACHANDRAN, AGED 42, S/O.

KRISHNAN, MADATHIPARAMBIL, SOUTH PUTHUVYPU

PUTHUVYPU P.O.

18. P.R.GOPI, AGED 49, S/O. RAMAN,

PUTHUVALSTHALATHU HOUSE, MURIKKUMPADAM, AZHEEKAL P.O.

19. P.V.VINU, AGED 31, S/O. VELAYUDHAN,

PUTHUVALSTHALATH, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

20. P.B.BALATHILAK, AGED 32, S/O.

BALAKRISHNAN, PUTHUVALSTHALATHU, SOUTH PUTHUVYPU

PUTHUVYPU P.O.

21. P.D.GOPI, AGED 47, S/O. DUDACHAN,

PUTHUVALSTHALATHU HOUSE, MURIKKUMPADAM, AZHEEKAL P.O.

22. P.S.SANTHOSH, AGED 43 YEARS,

S/O. SANNAPUTHI, PUTHUVALSTHALATHU, THEKKANMALIPURAM

AZHEEKAL P.O., THEKKANMALIPURAM, AZHEEKAL P.O.

23. P.R.BABU, AGED 44, S/O. RAMAN,

PUTHUVALSTHALATH HOUSE, THEKKANMALIPURAM

AZHEEKAL P.O.

24. M.K.RAVI, AGED 47, S/O. KRISHNAN,

MADATHIPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

25. P.M.SEKHARAN, AGED 39, S/O. MADHAVAN,

PUTHUVALSTHALATH HOUSE, THEKKANMALIPURAM

AZHEEKAL P.O.

26. P.R.RADHAKRISHNAN, AGED 40, S/O. RAMAN,

PUTHUVALSTHALATH HOUSE, SOUTH PUTHUVYPU

PUTHUVYPU P.O.

27. P.B.REMESAN, AGED43, S/O. BALAN,

PUTHUVALSTHALATH HOUSE, MURIKKUMPADOM, AZHEECKAL P.O.

28. K.K.LOHIDHAKSHAN, AGED 46, S/O.KRISHNAN,

KANDATHIPARAMBIL, AZHEECKAL, AZHEECKAL P.O.

29. P.B.NAVEENKUMAR, AGED 37, S/O. BHAVAN,

PUTHUVALSTHALATH, MURIKKUMPADOM, AZHEEKAL P.O.

30. P.V.MANILAL, AGED 33, S/O. VELAYUDHAN,

PUTHUVALSTHALATHU, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

31. K.G.MANI, AGED 46, S/O. GOVINDAN,

KANIAMPARAMBIL, APPANGAD, NARAKKAL P.O.

32. P.K.ASOKAN, AGED 43, S/O. KRISHNAN,

PUTHUVALSTHALATHU HOUSE, THEKKANMALIPURAM

AZHEECKAL P.O.

33. P.B.ANIL, AGED 29, S/O. BALAKRISHNAN,

PUTHUVALSTHALATH, MURIKKUMPADOM, AZHEECKAL P.O.

34. P.T.UNNI, AGED 41, S/O. THANKAPPAN,

PALIYAMPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

35. P.S.MANOJ, AGED 30, S/O. SOMAN,

PUTHUVALSTHALATH HOUSE, MURIKKUMPADOM, AZHEECKAL P.O.

BY ADVS.SRI.A.X.VARGHESE

SRI.A.V.JOJO

RESPONDENT(S)/RES. 1 TO 6 & PETITIONERS:

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1. THE GOVERNMENT OF INDIA,

REPRESENTED BY MINISTRY OF OIL AND NATURAL GAS

DEPARTMENT, NEW DELHI.

2. STATE OF KERALA, REPRESENTED BY

CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

3. THE KOCHI REFINERIES LTD.,

REPRESENTED BY ITS MANAGING DIRECTOR, AMBALAMUGAL.

4. CHAIRMAN,

KOCHI PORT TRUST, WILLINGTON ISLAND.

5. LIQUEFIED NATURAL GAS LTD.,

REPRESENTED BY ITS MANAGING DIRECTOR

7 D PEEVEES TRITON APARTMENTS, SHANMUGHOM ROAD

MARINE DRIVE, KOCHI-682 031.

6. THE DISTRICT COLLECTOR,

ERNAKULAM.

#7. VENU P.V., AGED 17 YEARS, S/O.

VELAYUDHAN, PUTHUVALSTHALATHU, MURIKKUMPADOM

AZHIKKAL P.O.-682 510.

8. P.S.BABU, AGED 43, S/O. SREENIVASAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

9. P.N.MOHANAN, AGED 51, S/O. NARAYANAN,

PULIMCHUVATTIL, APPANGAD, NARACKAL P.O.

10. P.G.CHANDRAMOHANAN, AGED 39, S/O.

GOVINDAN, PUTHUVALSTHALATH, THEKKENMALIPURAM

AZHEEKAL P.O.

11. P.R.ASOKAN, AGED 42, S/O. RAMACHANDRAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

12. P.P.SURESH, AGED 45, S/O. PINNAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

13. T.S.PADMANABHAN, AGED 56, S/O.

SREENIVASAN, THUNDIPARAMBIL, AZHEEKAL

AZHEEKAL P.O.

14. T.R.SIVAJI, AGED 42, S/O. RAMAN,

THAREPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

15. P.J.VIJAYAN, AGED 37, S/O. JANARDHANAN,

PUTHANVEETTIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

16. P.R.CHANDRAN, AGED 62, S/O. RAMAN,

PUTHUVALSTHALATHU HOUSE, THEKKANMALIPURAM

AZHEEKAL P.O.

17. P.R.SASI, AGED 16, S/O. RAMAN,

PALIAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

18. K.V.BAVAN, S/O. VATTU,

KALLUVEETTIL, AZHEEKAL, AZHEEKAL P.O.

19. P.K.PRAKASAN, AGED 38, S/O. KRISHNAN,

PUTHUVALSTHALATHU HOUSE, SOUTH PUTHUVYPU

PUTHUVYPU P.O.

20. K.M.SURESH, AGED 37, S/O. MINNA,

KUZHIPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

21. P.M.SIVAN, AGED 42, S/O. MADHAVAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

22. P.R.PAVITHRAN, AGED 38, S/O. RAMAN,

PUTHENPURAYKAL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

23. K.H.PRAMOD, AGED 27, S/O. HARIDAS,

KANDATHIPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

24. K.P.VIJAYAN, AGED 37, S/O. PRABHAKARAN,

KOLAPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

25. P.S.JAYAPPAN, AGED 57, S/O. SREENIVASAN,

PALIYAMPARAMBIL, AZHEEKAL, AZHEEKAL P.O.

26. K.P.RAVI, AGED 34, S/O. K.L.PRABHAKARAN,

KOLAPARAMBIL, SOUTH PUTHUVYPU, PUTHUVYPU P.O.

27. P.G.SANILKUMAR, AGED 31, S/O. GOPALAN,

PUTHANPURYKAL, MURIKKUMPADAM, AZHEEKAL P.O.

# 28. P.R.ANANDAN, AGED 45, S/O. RAMAN,

PUTHUVALSTHALATH HOUSE, MURIKKUMPADAM, AZHEEKAL P.O.

* ADDL.R29 TO R37 IMPLEADED

ADL.R29: T.B.REKHU, S/O.BHASKARAN, AGED 33 YEARS,

THUNDIPARAMBIL HOUSE, SOUTH PUTHUVYPE PO.,

KOCHI TALUK, PIN: 682 508.

ADDL.R30: P.G.BABU, S/O.LATE GOVINDAN, AGED 52 YEARS,

PUTHUVALSTHALATH HOUSE, SOUTH PUTHVYPE P.O,

KOCHI TALUK, PIN 682 508.

ADDL.R31: T.K.VENUGOPALAN, S/O.LATE KRISHNAN, AGED 55 YEARS,

THAREAPARAMBIL HOUSE, THEKKAN MALIPURAM,

AZHEECKAL P.O, KOCHI TALUK PIN - 682 510.

ADDL.R32: M.B.DEVANANDAN, S/O.LATE BHAVAN, AGED 45 YEARS,

MADATHIPARAMBIL HOUSE, MURUKKUMPADAM,

AZHEECKAL P.O, KOCHI TALUK PIN - 682 510.

ADDL.R33: K.R.RAVI. S/O.LATE RAMAN, AGED 63 YEARS,

KUZHUPARAMBIL HOUSE, SOUTH PUTHUVYPE P.O,

KOCHI TALUK, PIN:682 508.

ADDL.R34: K.R.ULLASAN, S/O.LATE RAMAN, AGED 42,

KANDATHIPARAMBIL HOUSE, VYPEEN,

AZHEECKAL P.O, KOCHI TALUK, PIN - 682 510.

ADDL.R35: P.B.RAJU, S/O.BABBYAN, AGED 48 YEARS,

PUTHUVALSTHALATH HOUSE, MURUKKUMPADAM,

PUTHUVYPE VILLAGE, KOCHI TALUK, PIN 682 510.

ADDL.R36: P.L.SURESH, S/O.LATE LAKSHMANAN, AGED 33 YEARS,

PUTHUVALSTHALATH HOUSE, MURIKKUMPADAM,

PUTHUVYPE VILLAGE, KOCHI TALUK.

ADDL.R37: T.K.SUBRAMANIAN, S/O.KRISHNAN, AGED 61 YEARS,

THAREAPARAMBIL HOUSE, THEKKAN MALIPURAM,

PUTHUVYPE VILLAGE, KOCHI TALUK.

*ADDL.R29 TO R37 IMPLEADED AS PER ORDER DATED 11.02.2008 IN

I.A.NO.134/2008.

# R7 TO R 28 DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANTS.

R3 T0 R5 BY ADV. SRI.E.K.NANDAKUMAR

BY ADV. SRI.A.K.JAYASANKAR NAMBIAR

BY ADV. SRI.K.JOHN MATHAI

BY ADV. SRI.P.BENNY THOMAS

BY ADV. SRI.ANIL D. NAIR

R1, BY ADV. SRI.ABRAHAM THOMAS, CGC

ADDL.R7 TO 15 BY ADV. SRI.MAJNU KOMATH

ADDL.R7 TO 15 BY ADV. SRI.SHAHIN.M.KOMATH

R2 & R6 BY GOVERNMENT PLEADER SRI.P.I.DAVIS

BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2013, ALONG

WITH WA. 238/2008, THE COURT ON 18.03.2013 DELIVERED THE FOLLOWING:

MANJULA CHELLUR, C.J

&

K.VINOD CHANDRAN, J.

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W.A.No. 2865 of 2007

&

W.A.No. 238 of 2008

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Dated this the 18th day of March, 2013

Head Note:-

Constitution of India, 1950 – Article 21 – Special Economic Zone Act, 2005 – Ports Act, 1908 - Right to collect seashells from the bed of seacoast - area falls under the Cochin Port Trust limits and is exclusively reserved for port related activities, including development work - Cochin Port Trust reserves the right to terminate the permission at any point of time giving one month notice and the permission was not renewed at the option of the Co-operative Society - permission did not create any obligation on the Port to provide employment to the members of the Society - They did not saddle themselves with the liability of paying compensation or meeting any claim in the event of refusal of permission - The project under the Integrated Development Plan of Cochin Port Trust was also indicated as related activities of the Port - None of the activities of the Society should cause in any way obstruction or hurdle for the operations of the Port - No exclusive right was reserved to the Society to collect seashells from the area - The permission to mine seashells was again subjected to clearance from other statutory authorities - Society has given an undertaking to the Port accepting the above terms and conditions and also assurance to comply with any other conditions issued from time to time - in the event of refusal of permission, the Port will not be liable for any claim for compensation by the Society - Hence the mining activity carried on with the permission of the Port was terminable without any reason and on that contingency no claim for compensation could arise, from the Society or its members. Hence the formation of a Special Economic Zone, the construction of berths to facilitate availability of fuel, that too nature friendly fuel, and the consequential restriction of entry, on grounds of safety and security; surely cannot give rise to claim for security - The permissive grant for mining shells created no vested right and the cancellation or refusal of further grant neither violate the right to live nor gives rise to a claim for compensation.

J U D G M E N T

Manjula Chellur, C.J.

These two Writ Appeals are filed against the common judgment in W.P(C).No. 29611 of 2007. The writ petitioners approached the learned Single Judge contending, their livelihood is taken away by declaring the seashore in Puthuvypu as Special Economic Zone, resulting in prohibition to enter the said area. According to the writ petitioners, they are eking out their livelihood right from 1976 onwards by mining shells from the Arabian seashore in and around Puthuvypu. After declaring the said area as a Special Economic Zone, the impending work of Liquefied Natural Gas (LNG) has started for the purpose of construction of a berth. With this construction of berth for LNG, no space would be available for the petitioners to place their mined seashells on the shore which results in total deprivation of their livelihood. The action of the respondents putting up berth and plants on the shores of Arabian Sea would come in the way of livelihood of the petitioners, therefore, it is unconstitutional, unjust and is against the principles of public law, is the contention of the writ petitioners. This results in infringement of fundamental rights guaranteed under Article 21 of the Constitution of India. By act of nature, Kochi Estuary had been created more than 600 years ago which resulted in accumulation of seashells on the right side of Kochi Estuary and the work of mining seashells had been carried on from time immemorial by ancestors of the writ petitioners and later on by the writ petitioners. On account of accumulation of lime shells, Cochin Port Trust was continuously giving no objection certificates to the Society of the writ petitioners for mining seashells. This bountiful gift of nature is obstructed on account of construction of berth, compound wall and oil plants at the instance of the Cochin Port Trust, Kochi Refineries Ltd. and Petronet LNG Ltd. in Puthuvypu after declaring the said area as a prohibited area being a Special Economic Zone.

2. The respondents proceeded with their work of construction of berth etc. totally ignoring the plight of the writ petitioners and their families unmindful of their action depriving their livelihood. If their only means of livelihood is taken away, it would be impossible for them to make both ends meet and they will be threatened with utter starvation, is the contention raised. With the above averments, they have sought the following reliefs:

"i) Issue a Writ of Mandamus directing the respondents to allow the petitioners to continue the present work of mining shells on the sea shore in Puthuvypu in the right side of Kochi Estuary.

ii) Issue a Writ of Mandamus directing the Respondents to pay Rs.10 lakhs to each petitioners as compensation by way of public law remedy in the event of loss of employment and livelihood in the coming days on account of the construction and installation of berth and oil tanks in and around Special Economic Zones at Puthuvypu at the instance of the respondents.

iii) Issue a Writ of Mandamus directing the respondents to rehabilitate the petitioners in any of the employments emanated on account of this construction of the installations of LNG and KRL.

iv) Such other reliefs that this Hon'ble Court deems fit and proper."

3. The second respondent, Additional Secretary to Government, Industries Department, filed a counter affidavit in response to the averments indicated in the Writ Petition. After referring to the process how Cochin Port Trust allotted land to the Petronet LNG Ltd. in Re-Survey No.347 at Puthuvype area, she contends that the approach road to the project site has to be constructed by the Cochin Port Trust. She further contends that as the project involves conversion of Liquefied Natural Gas to Re- gasified Liquefied Natural Gas to be sold to various companies, who, in turn, transport the said product through GAIL pipeline to various customers like power producers, fertilizer manufacturers and other industrial units, the area deserves to be safeguarded, hence it necessitated construction of a boundary wall and declaration of the area as a Special Economic Zone. According to respondents, the major investment would enhance development of infrastructure in and around Kochi which would facilitate promotion of new gas-based-industries in the State of Kerala. This again would result in creation of employment. The terminal is proposed to be in operation by 2012.

4. According to the respondents, the Society, to which all the writ petitioners belonged to, was permitted to collect seashells from the sea coast of Elamkunnapuzha Village for a period of 11 months commencing from 1.8.2006 to 30.6.2007. The said permission is also subject to terms and conditions. The permission is liable to be terminated. It is clearly mentioned in the said permission that the area falls under port limits and the area concerned is exclusively reserved for port related activities and the permission is only a provisional one. Permission to collect seashells was valid upto 30.6.2007, therefore, the writ petitioners cannot claim unfettered right to collect seashells from the port area. Having agreed to the terms and conditions at Exhibit P5, there is no justification in the contention of the writ petitioners raised now. Construction of compound wall is almost at the verge of completion. The contention that once the construction of berth commences, there will not be any space for the appellants to store their mined seashells is denied, as the said mining of seashells was subject to permission. According to them, there will be enough and sufficient space available in the beach to store such seashells. But, however, there has to be restricted entry into the berth and other areas of Petronet LNG Ltd. for reasons of security to avoid any untoward incident. The terminal deals with products that require handling with great care and caution. The contention that only in a small stretch of area the seashells are available on the shore of Puthuvype is also challenged. According to them, the Special Economic Zone Act of 2005 does not envisage any provision for rehabilitation of displaced persons. So far as restriction to enter the port area, it is not new as always such restrictions were imposed by Statute ever since the area was declared as a port area under the Indian Ports Act, 1908. Collection of seashells within the port area was subject to various restrictions. Restrictive right cannot be termed as infringement of fundamental right or deprivation of livelihood, is the contention. The claim for compensation is without any basis and similarly claim for rehabilitation is also untenable. With these averments, they had sought for dismissal of the Writ Petition.

5. The learned Single Judge dismissed the Writ Petition after adverting to the pleadings raised by the parties. The learned Single Judge opines, in the absence of the writ petitioners having any legal right, once the area is declared as Special Economic Zone under a legislation, consequences prescribed under the Act follows and the same cannot be termed as violation of the writ petitioners' right under Article 21 of the Constitution, as the declaration in question is under a special law. Aggrieved by the dismissal of the Writ Petition, the present Writ Appeals are filed contending that the request for rehabilitation of lime shell mining workers was totally ignored by the respondent authorities concerned, in spite of several requests and representations sent to them.

6. According to the appellants-writ petitioners, though the representatives of the Co-operative Department visited the site and conducted enquiries for the purpose of reporting to Government, no step whatsoever was taken by the authorities concerned to solve the burning problem of eminent threat to the livelihood of the appellants. The vast coast area mentioned by the appellants hitherto would be cut short on account of the construction activities and declaration of the area as Special Economic Zone, is the contention. According to them, the learned Single Judge ought to have found that there is no efficacious alternative remedy available for the appellants, except filing the Writ Petition. The appellants claim, the Constitutional Court has a duty to protect fundamental rights of the citizens, even if deprivation of life has occurred on account of enactment of legislation, as Article 21 of the Constitution does not refer only to the necessity to comply with the procedural requirement, but also substantive right of the citizens. Contending that when the constitutional guarantees rights are being infringed the violators and abettors of the violations have to be dealt with by protecting the rights of the victims. With these averments, the appellants seek to allow the Writ Appeals setting aside the judgment of the learned Single Judge.

7. Learned counsel Sri.A.X.Varghese arguing for the appellants, substantiating his contentions as stated above, placed several citations. Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC 180) is relied upon to contend that the doctrine of estoppel can have no application to representations made regarding the assertion or enforcement of fundamental rights, as there can never be waiver of fundamental rights and no individual can barter away the freedom conferred upon him by the Constitution. Chameli Singh and others v. State of U.P and another [(1996)2 SCC 549] was pressed into service to contend that right to food, water, decent environment, education, medical care and shelter are components of right to live and mere right to shelter does not mean a mere right to a roof over one's head, but it is something more than a mere protection of one's life and limb. Duty of State encompasses providing housing facilities to Dalits and Tribes in the light of universal declaration of human rights. He also placed reference to Bandhua Mukti Morcha v. Union of India and others (AIR 1984 SCC 802), to contend that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure to them social and economic justice which is the signature tune of our Constitution. Reliance is also placed on Indra Sawhney v. Union of India (AIR 1993 SC 477) to contend that the doctrine of equality and its scope enshrined in the Constitution in Articles 14 to 18 are to be understood in the light of Articles contained in Part IV of the Constitution. In a case of claim in public employment what applies to the claim of Scheduled Castes and Scheduled Tribes will equally apply to backward classes and other weaker sections. Bodhisattwa Gautam v. Subhra Chakraborty [(1996)1 SCC 490] is a case where interim compensation came to be awarded to the victim of a rape during the pendency of the proceedings for an offence punishable under Section 376 IPC. It was held that right to live includes dignity of women and if rape is committed on her, it is nothing, but violative of right to live, which includes right to live with human dignity. Reliance is placed on Consumer Education & Research Centre and others [(1995) 3 SCC 42], wherein Their Lordships, while considering the occupational health hazards of employees working in mines, had an occasion to deal with the right to health and medical aid of workers during service and thereafter and held that to be a fundamental right. Therefore, Court can give directions in appropriate cases to the State or its instrumentalities or private employer to make the right meaningful and to pay compensation to affected parties. In Secretary, HSEB v. Suresh and others [(1999)3 SCC 601], Their Lordships, while dealing with the claim made by a person engaged under contract labour on a bogus contract, as against the relationship of employer and employee, opined that doctrine of "lifting of the veil" though applied in corporate jurisprudence can be imported in the context of social evils, and Courts must decide in the interest of public inspired by principles of justice, equity and good conscience especially in the context of labour welfare legislation.

8. As against this, the learned Government Pleader contends that though the present case is filed in the nature of public interest litigation, the Court cannot ignore the facts of the present case, which govern the rights and duties of the parties with reference to terms and conditions of the permission under which the writ petitioners and other members of the Society they belonged to are mining the seashells. Ananda Behera and another v. State of Orissa and another (AIR 1956 SC 17) was relied upon to contend that a right to catch and carry away fish in specific portions of the lake is nothing, but a 'profit a prendre'. If the State refuses to recognise a contract, it is not infringement of fundamental right. Shivji Nathubhai v. Union of India and others (AIR 1959 PUNJAB 510) is pressed into service to contend that right under lease to work mines is not property and cancellation by government under due process of law is no infringement of Article 19(1)(f) or (g) or Art.31(1) of the Constitution.

9. In the light of the principles enunciated as stated above, we have to examine the facts of the present case. The appellants relate their claim to Exhibit P5 dated 17.1.2007. Exhibit P5 is a letter addressed to the Secretary, Kakka Vyavasaya Co-operative Society Ltd., Thekken Malippuram, Azheekkal P.O., Kochi by the Cochin Port Trust. It says, in response to the request dated 1.9.2005 made by the Society, it was decided to permit the Society to collect seashells from the bed of sea coast West of Re- Sy.Nos.394, 470, 471, 473, 474, 475 and 476 of Elamkunnappuzha Village. It further indicates the terms and conditions to which the said permission to collect seashells is subjected to, which reads as under:

"1. The area falls under the Port limits and is exclusively reserved for Port related activities/development work only. As such this permission is purely provisional/ temporary.

2. This permission will be for a period of 11 months from 1.8.2006 to 30.6.2007.

3. This permission will not be renewable at the option of the Co.op. Society and the Port reserves the right to terminate the permission at any point of time by giving 1 month notice.

4. The permission does not entail any obligation to the Port to provide any employment to the members of the Society.

5. In an event of refusal of permission Port will not be liable for any claim or compensation, what so ever of any nature to the Society.

6. The permission shall be revoked at any point of time if the area is required for the port related development work including the Projects under the integrated Development Plan of Cochin Port.

7. The permission does not grant any exclusive right to the Society to collect the shells from the area.

8. The engagements of the society should not in any way cause any obstruction what so ever to the Port operations, at any point of time.

9. Statutory clearance as required under law from appropriate authority including that of from the Directors of Mining & Geology may also be obtained by the Society and a copy of the same should be submitted to this office for records.

10. The Society will give an undertaking to the Port accepting the above terms and conditions and also give an assurance to comply with any directions issued by the Port from time to time in this regard."

10. True, the Society was formed as a Co-operative Society for the welfare of its members. It was the Society in whose favour permission was granted to collect seashells from the bed of seacoast in certain re-survey numbers as stated above. However, it was subject to terms and conditions. In the light of the terms and conditions, the facts in the present petitions have to be analysed with reference to the law declared by the Apex Court referred to above. So far as Olga Telli's case (Supra), the petitioners were persons, who were living on pavements and slums in Bombay city, constituting nearly half of the population of the city. Though Their Lordships while summarising opined that no person has the right to encroach by erecting a structure of any nature on places which are meant for public purposes like footpaths, pavements, garden, playground etc. in terms of the Bombay Municipal Corporation Act, on account of assurances given by the State Government in their pleadings thereunder, the authorities concerned were held to be obliged to comply with the promises made. The situation which persuaded Their Lordships to give directions to the authorities concerned to provide alternative sites or accommodation to the pavement and slum dwellers came in the light of certain undertakings in those matters. In 1976, the pavement dwellers were taken note of and included in the census. Slum dwellers were given identity cards and even numbering of their dwellings was carried on way back in 1976 census. The above two kinds of dwellers were in existence for a long time. They had acquired a certain status, recognised by the local authority, though their encroachment was essentially illegal. Moreover, in the pleadings, assurance was given to create alternative place or accommodation. The facts of the present case are entirely different.

11. So far as Chameli Singh and others v. State of U.P and another [(1996)2 SCC 549), it was a case of compulsory acquisition of land by the State for public purpose in exercise of its power of eminent domain. Their Lordships opined that exercise of power of eminent domain does not amount to deprivation of right to livelihood (Article 21 of the Constitution of India). Acquisition of land was in accordance with the procedure depending upon its compulsory nature, because of involvement of public interest. In the light of provision for payment of solatium to the owner who declines to voluntarily part with the possession of land as enunciated under Section 23 of the Land Acquisition Act as also compensation for the land acquired at the price prevailing as on the date of publishing preliminary notification under Section 4(1) of the Land Acquisition Act, question of deprivation of right to livelihood would not ensue. On account of displacing the owner or occupier from enjoying the fruits of the land, interest is also payable apart from recompensating the loss of enjoyment of property, therefore, it does not amount to deprivation of right to livelihood, was the clear finding.

12. In the case of Bandhua Mukti Morcha v. Union of India and others (AIR 1984 SC 802), it was a lis pertaining to certain workmen living in bondage and under inhuman conditions. In the said case Their Lordships said, in a public interest litigation of such nature the Government should welcome an enquiry by the Court into the inhuman conditions of the workmen living as bondaged labours. Public interest litigation was described as a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the society resulting in assurance of social and economic justice to its subjects. In that context, Their Lordships, while referring to Article 21 of the Constitution, proceeded to opine that Article 21 not only assures the right to livelihood, but it assures the right to live with human dignity free from exploitation. Their Lordships emphasises that the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting them.

13. In the case of Indra Sawhney's case (Supra) with reference to Scheduled Castes and Scheduled Tribes' claim in public employment, Their Lordships considered various aspects of the matter and opined that similar consideration has to be applied while considering the claim of backward classes and other weaker sections of the society, as the provisions of Article 46 of the Constitution are entirely different from provisions of Article 16(4) as Article 16(4) restricts its application so far as adequate representation in the services of the State to that class which has no such representation. The concept of "weaker sections" in Article 46 of the Constitution has no bounds, therefore, any individual belonging to the weaker section though they do not form a class, they could claim as weaker section of the society, though it is not relatable to their past social and economic backwardness or discrimination. In that context, Their Lordships said, weaker sections of the people include educationally and economically backwardness.

14. In Bodhisattwa Gautam v. Subhra Chakraborty [(1996)1 SCC 490], while referring to Article 21 of the Constitution - Right to Life, Their Lordships elaborated its applicability even to the victims of rape as right to life includes right to live with dignity. Therefore, in an offence of rape, the act itself is violative of the right to life which includes right to live with human dignity, therefore, under Article 32 of the Constitution, the Court has jurisdiction to enforce the fundamental rights even against private bodies and individuals and while enforcing fundamental rights, the Court can award compensation for violation of the fundamental right of Right to Life.

15. In the case of Consumer Education & Research Centre and others v. Union of India and others [(1995)3 SCC 42], Their Lordships were dealing with the plight of workers employed in asbestos industries, who not only would be affected by asbestosis, but become prone to lung cancer and related ailments. While laying down that sovereign immunity cannot be a defence where fundamental rights are sought to be enforced, Their Lordships proceeded to opine that right to life under Article 21 of the Constitution has a wider meaning including right to livelihood, better standard of living, hygienic conditions in the workplace and need for adequate leisure. As right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood.

16. In Secretary, HSEB v. Suresh and others [(1999)3 SCC 601], it was a case of abolition of contract labour. The Haryana State Electricity Board being a licensee under the Electricity Act, had the responsibility of supplying power throughout the State to various plants and stations. So far as clearing those plants and stations, the Electricity Board had awarded contracts to contractors, who are required to engage certain minimum number of workmen for cleaning the main plant building at Panipat for a period of one year. On facts, when the terminated employees approached the Court contending that they had worked for more than 240 days, it was found that the contractor was only a name lender and there was no genuine contract with him. Their Lordships upheld the opinion of the High Court that the employees are to be treated as employees of the Board, therefore, they were entitled for reinstatement without resort to Section 10 of the Contract Labour (Regulation and Abolition) Act.

17. In the case of Ananda Behera and another v. State of Orissa and another (AIR 1956 SC 17), an agreement was entered into granting a right to catch and carry away fish from specific portions of the lake over a specified future period for certain amounts. This right obtained as a licence, was to enter on the land coupled with a grant to catch and carry away fish. The petitioner in the said case had entered into a contract with an ex- proprietor of an estate prior to its vesting in the State of Orissa. That contract permitted the petitioner to pay certain amounts for certain period to grant licence to catch and carry away fish from specific portion of lake situated in the said estate. Subsequent to its vesting with the State, the State of Orissa refused to recognise these licences and proceeded to re-auction the rights. At that point of time, they approached the Court seeking writ under Article 32 of the Constitution contending that their fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution were about to be infringed. Their Lordships held that even assuming that 'contract' is 'property' within the meaning of Articles 19(1)(f) and 31(1) of the Constitution, no question under those Articles would arise because the State refused to recognise the existence of the contract and it does not amount to confiscation or taking possession of the contract as such, hence, the Writ Petition came to be dismissed.

18. In the case of Shivji Nathubhai v. Union of India (AIR 1959 Punjab 510), it was a licence to work in mines of Government property. The right to work in a mine upon another's land does not exist before the licence or lease is granted to him and cannot be treated as a right analogous to the fundamental right of a citizen to trade and buy and sell in open market. The fundamental rights as contemplated by the Constitution were rights which already existed and no rights which are created by a contract whether that contract be between private individuals or between the Government and a private individual.

19. In the light of the principles laid down by the Apex Court and other Courts as enunciated above, it is crystal clear that one has to look at the nature of the right acquired by these petitioners. It is not in dispute that the right to collect seashells from the bed of seacoast is created under Exhibit P5. The terms and conditions enumerated at Exhibit P5 referred to above clearly indicate that the Society was aware of the fact that said area falls under the Cochin Port Trust limits and is exclusively reserved for port related activities, including development work. It was made clear, the permission was purely a temporary one for a period of 11 months ending with 30.6.2007. The Cochin Port Trust made it obvious that the Cochin Port Trust reserves the right to terminate the permission at any point of time giving one month notice and the permission was not renewed at the option of the Co-operative Society. The permission under Exhibit P5 did not create any obligation on the Port to provide employment to the members of the Society. They did not saddle themselves with the liability of paying compensation or meeting any claim in the event of refusal of permission. The project under the Integrated Development Plan of Cochin Port Trust was also indicated as related activities of the Port. None of the activities of the Society should cause in any way obstruction or hurdle for the operations of the Port. No exclusive right was reserved to the Society to collect seashells from the area. The permission to mine seashells was again subjected to clearance from other statutory authorities. It is not in dispute that the Society has given an undertaking to the Port accepting the above terms and conditions and also assurance to comply with any other conditions issued from time to time.

20. It is very pertinent that Exhibit P5 by clause/condition No.5 prescribed that in the event of refusal of permission, the Port will not be liable for any claim for compensation by the Society. Hence the mining activity carried on with the permission of the Port was terminable without any reason and on that contingency no claim for compensation could arise, from the Society or its members. Hence the formation of a Special Economic Zone, the construction of berths to facilitate availability of fuel, that too nature friendly fuel, and the consequential restriction of entry, on grounds of safety and security; surely cannot give rise to claim for security. The permissive grant for mining shells created no vested right and the cancellation or refusal of further grant neither violate the right to live nor gives rise to a claim for compensation.

21. Having agreed to above terms and conditions, when the Kochi Refineries Ltd. and the Petronet LNG Ltd. commenced their work, the petitioners are seeking several reliefs including compensation contending that their right to life is jeopardised with the ongoing construction of work undertaken by the Petronet LNG Ltd. and Kochi Refineries Ltd. No one can dispute the importance of the project, conversion of Liquefied Natural Gas to Re-gasified Liquefied Natural Gas, which would help several industries. The nature of work requires the area to be declared as a Special Economic Zone having regard to vulnerable nature of product. Definitely safeguarding the area is a must. The so-called right to collect seashells is subject to terms of Exhibit P5 which is the permission to collect seashells. The terms and conditions enumerated thereunder do not give any unbridled right of any legal nature to petitioners or Society, which cannot be withdrawn. In the absence of appellants having such unlimited and unrestricted right, once the area is declared as a Special Economic Zone under a legislation, consequences prescribed thereunder naturally have to follow, it cannot be termed as violation of right to life of the appellants under Article 21 of the Constitution. The various decisions relied on by the petitioners, on facts, noticed above, are clearly distinguishable.

22. However the dismissal of the Writ Appeals shall not preclude the State or the appropriate authorities, from examining the grievances of the appellants and if found genuine and capable of redressal; from taking necessary steps to alleviate such grievances. The contours of our jurisdiction fetters us from issuing any directions to formulate policy, neither is there available a legal right to the petitioners; but the welfare State always can draw from its eternal fountain of sovereignty and eminent domain.

23. Viewed from any angle, none of the contentions raised by the appellants could be sustained for the reasons mentioned above.

Accordingly, the Writ Appeals are dismissed.

MANJULA CHELLUR,

CHIEF JUSTICE

K.VINOD CHANDRAN,

JUDGE

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