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2022 DIGILAW 928 (KER)

Suresh Kumar S, S/o Surendran v. Union Of India

2022-11-01

S.MANIKUMAR, SHAJI P.CHALY

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JUDGMENT : Shaji P. Chaly, J. The captioned writ appeal and the public interest writ petition are materially connected in respect of removal of a sandbar from the Thottappally Spillway region in Alappuzha district, and the segregation of the atomic mineral from the sand so removed. Therefore, with the concurrence of all parties, they were heard together and proposed to pass this common judgment. The fundamental issue raised by the appellant and the petitioners is that in the guise of removal of the sand bar for flood management and mitigation invoking the Disaster Management Act 2005, mining is being carried out without securing adequate clearances from the respective statutory authorities. 2. Writ Appeal No. 1643 of 2021 is filed by the writ petitioner challenging the judgment of the learned Single Judge dated 17.11.2021 in W. P. (C) No. 15520 of 2021 whereby the learned Single Judge dismissed the writ petition basically holding that there is no sand mining taking place at Thottappally Spillway consequent to removal of the sandbar, but the sandbar is removed invoking the powers under the Disaster Management Act, 2005 (Act 2005), in order to protect the people of Kuttanad area from flooding. It was also found that Section 72 of the Act 2005 has an overriding effect over the provisions of other laws, since it is intended to protect the very life of the citizens, without which the words right, liberty, o freedom and even the word Constitution will have no meaning. 3. In the public interest writ petition, the petitioner is the President of a registered trade union said to be constituted for the protection and welfare of fishermen community in the State of Kerala. In the said writ petition, petitioner seeks to set aside Ext. P18 resolution passed by the Purakkad Grama Panchayat dated 09.09.2021 whereby the Panchayat has decided to cancel the stop memo dated 01.06.2020 issued by the Secretary to the Kerala Minerals and Metals Ltd., requiring to stop mining of sand from Thottappally Pozhimugham (river mouth) and for a further writ of mandamus to restrain Kerala Minerals and Metals Ltd. (KMML) Kollam, Indian Rare Earths (India) Ltd. (IREL), Mumbai and Laxyo Energy Ltd., Madhya Pradesh, respondents 9 to 11, from functioning the atomic minerals separation plant installed in the CRZ prohibited zone, without getting clearance and sanction from the CRZ authorities as contemplated under the Coastal Regulation Zone notification, 2011. 4. 4. For the disposal of the appeal and the writ petition, the facts and documents available from W.A.No. 1643 of 2021 are relied upon. 5. The writ petition leading to the writ appeal is filed by the petitioner challenging the permission given to the KMML to conduct sand mining from Thottappally Spillway region. According to the appellants, Ext. P2 order passed by the State Government dated 31.05.2019 and the agreement executed thereto are in blatant violation of the Mines and Minerals (Development and Regulation) Act, 1957 (Act 1957) and the Coastal Regulation Zone notifications 2011 and 2019. 6. According to the appellants, the Kuttanad region in Alappuzha District during heavy monsoon gets inundated and consequent to which severe loss and damages to the people and agriculture is caused. It was taking into account the said fact that the Government of India by its 1st five year plan of 1954 constructed an artificial channel to collect and drain the flood water from the rivers before it entered into the Kuttanad region. It is the case of the appellants that the artificial channel is designed in such a manner that from a place called Veeyapuram in Alappuzha District, the flood water is drained through the artificial channel and it passes through the Purakkad Panchayat area and ends at Thottappally Spillway from where the flood water is drained out into the Arabian Sea. 7. It is further submitted by the appellants that, for draining the flood water from the artificial channel to the Arabian Sea, a small portion of the beach in the Thottappally Spillway region is cut open during the monsoon season when the Spillway shutters are opened for draining the flood water. According to the appellants, the said process was done by the local people using spade and other manual utensils under the direction of the Irrigation Department of the State Government right from its inception in the year 1956. It is also pointed out that once the Thottappally Spillway shutters are opened, then by the high velocity of the water that is flown through the artificial channel, the small portion of the beach that has been cut opened gets widened and the flood water is fully drained into the sea. 8. It is also pointed out that once the Thottappally Spillway shutters are opened, then by the high velocity of the water that is flown through the artificial channel, the small portion of the beach that has been cut opened gets widened and the flood water is fully drained into the sea. 8. It is the case of the appellants that beach sand in the Alappuzha coastal area mainly consists of high density atomic mineral sand scheduled under Part B of the First Schedule of the Act 1957; and hence the mining companies were always behind this for extracting the same, but it is because of the strict environmental protection laws and the coastal regulation laws that protected the beaches from being exploited by the mining companies. Contentions are also raised concerning the attempts made to conduct mining and the intervention made to prohibit the same. 9. Anyhow, it is submitted by the appellants that in the year 2018 there occurred severe flood in the State of Kerala which had a devastating effect and took the lives of hundreds of people and caused loss and damages to farmers and others running to several crores. The Government of Kerala carried out studies for remedying the flood especially in regard to the Kuttanad and coastal region of Alappuzha by engaging national and international expert agencies such as the Central Water Commission, the Dutch Disaster Risk Reduction Team and the Kerala State Planning Board. According to the appellants, all the national and international expert agencies who conducted the studies filed their report stating that it is because of the poor design of the leading artificial channel; the accumulation of the silt and sedimentation, and flooding occurs due to the obstruction in the free flow of water from the rivers to the Arabian Sea. 10. The grievance of the appellants is that in spite of all the national and international expert study reports, the Irrigation Department of the State Government as per Ext. 10. The grievance of the appellants is that in spite of all the national and international expert study reports, the Irrigation Department of the State Government as per Ext. P2 Government Order dated 31.05.2019 held that the cause of the flood in Kuttanad region is the beach sand in the Thottappally region and hence by the said order permitted the 9th respondent KMML to excavate and remove the atomic mineral sand from the coastal beach of Alappuzha in Thottappally region and for which an agreement was also entered into with the said organization in the year 2019 which agreement is produced as Ext. R9(b) along with the counter affidavit filed by the KMML. It is the prime submission of the appellants that the 9th respondent, as per the Government Order as well as the agreement, started to excavate and remove massive quantities of mineral sand from the coastal beach of Alappuzha in the Thottappally region. 11. According to the appellants, the national and international expert authorities who had conducted the study had specifically warned the State Government to prohibit sand mining from the beaches and had warned of serious environmental hazards. It is also pointed out that the national and the international authorities have predicted that by the massive extraction and removal of the high density mineral sand from the beach, which protected the land from sea erosion and high tidal waves, the sea began to engulf the land and started to encroach upon the land and around 450 residential house in the coastal area in Alappuzha. It is also pointed out that in the guise of removal of the sandbar in the Thottappally region, KMML and IREL Ltd, 9th and 10th respondents, are conducting massive excavation in the garb of action taken under the Act 2005 to save Kuttanad region. 12. According to the appellants, mining operations are done misinterpreting the expert reports and the report of the M. S. Swaminathan Commission, 2007 and a report of the Indian Institute of Technology, Madras. It is also pointed out that in the guise of the said reports alone, the State Government has issued Ext. P2 impugned order and consequently executed Ext. R9(b) agreement dated 11.10.2019. 13. It is also pointed out that in the guise of the said reports alone, the State Government has issued Ext. P2 impugned order and consequently executed Ext. R9(b) agreement dated 11.10.2019. 13. It is also contended that the activities are carried out by the said organizations without securing adequate clearances from the authorities under the Act 1957, the report submitted by the experts, the Environment (Protection) Act, 1986 (Act 1986) and the Coastal Regulation Zone notification, 2011 issued thereunder. Therefore, according to the appellants, the entire action of the respondents are illegal and arbitrary and the activities are carried out misusing the provisions of the Act 2005. 14. The Secretary to Irrigation Department, the Coastal Zone Management Authority (CZMA) and the aforesaid two companies which are undertaking the activities have filed statements/counter affidavits. 15. The State Government as well as the companies involved in the removal of the sandbar have stated that the activities are carried, taking into account the heavy flood that has taken place in the State of Kerala and the consequential disaster that has caused loss of human lives and damages running to thousands of crores. It is also submitted that it is on the basis of the study reports of various organizations and realizing the fact that the sandbar formed in the Thottappally region, unless removed continuously so as to ensure free flow of water to the Arabian Sea, the perennial problem of inundation in the Kuttanad area cannot be solved for once and all. 16. The Coastal Zone Management Authority among other contentions has submitted that the Purakkad Village in Alappuzha District comes under the purview of CRZ 2011 and as per the CZMP under CRZ 2011, Map No. KL 19, the area in question falls within CRZ-IB and no development zone of CRZ III. It is further submitted that as per clause 3(xiii) of CRZ 2011, dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purposes is a prohibited activity within the CRZ area. 17. It is further submitted that as per clause 3(xiii) of CRZ 2011, dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purposes is a prohibited activity within the CRZ area. 17. It is further submitted that as per clause 3(iv)(d) of CRZ 2011, land reclamation, bunding or disturbing the natural course of sea water except measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and fresh water recharge based on EIA studies carried out by any agency is to be specified by the Ministry of Environment and Forest (MoEF). 18. It is also submitted that as per clause 3(x) of CRZ 2011, mining of sand, rare minerals and other sub strata materials except mining of atomic minerals notified under Part B of the First Schedule of the Act 1957 occurring as such or in association with one or other minerals is declared as a prohibited activity in CRZ area. 19. It is also the submission of the said authority that as per clause 4(ii)(g) of CRZ 2011, mining of atomic minerals notified under Part B of the Act 1957 occurring as such or in association with one or other minerals require clearance from Ministry of Environment, Forest and Climate Change, after being recommended by the State Coastal Zone Management Authority. It is further pointed out that the CZMA has not received any application from the aforesaid companies seeking CRZ clearance for mining sand in the coastal area of Alappuzha District. 20. The District Collector, Alappuzha, has also filed a counter affidavit refuting the allegations raised by the appellants and also produced minutes of the meeting held by the District Disaster Management Authority meeting held on 06.05.2019 wherein one of the agenda was the removal of sand bund in Thottappally Spillway. It is also pointed out that considering the flood situations that the area suffered in the recent years, especially in 2018 and also foreseeing the probability of such events to occur in future, a meeting with the Minister for Water Resources and Minister for Agriculture was convened on 02.05.2019 in which it was decided that the trees in the vicinity which blocks the path for smooth flow of excess water into the sea be cut and removed. It is also submitted that in order to avoid future calamities, it was decided to take precautionary activities with immediate effect under Section 30 of the Act 2005. 21. In so far as Thottappally Spillway is concerned, it was decided to ensure the free flow of water without any obstruction through leading channels in Thottappally Spillway; to take pre-monsoon work for controlling the flood during monsoon season by the Irrigation Department and ensure free flow of water by removing the obstacles and thereby reduce the casualties faced by the public. It was also decided that eco-friendly actions should be taken without causing difficulties to locals and damages to houses and in compliance with the instructions already issued for the purpose. 22. It was further decided that precautionary measures for controlling soil erosion in coasts should be taken and after the removal of sand, its disposal may be done by concerned departments, in accordance with the law and in strict compliance of the court orders, if existing, from time to time. It was further decided that the actions should be implemented by the Irrigation Department in consultation with the Social Forestry Department. Other decisions were also taken. 23. However the sum and substance of the contention advanced by the appellants is that the sandbar is being removed illegally and overlooking the expert reports, the provisions of the Disaster Management Act, 2005, the Mines and Minerals (Development and Regulation) Act, 1957, the Coastal Regulation Zone notification 2011 and the Environment (Protection) Act, 1986. But the contention of the State as well as the other authorities is that the action is initiated taking into account the pros and cons of the damage created, loss of life of the people due to the flood occurred in the State of Kerala during the year 2018 and its devastating effects. It is also submitted by the State that Section 72 of the Act 2005 would have a clear precedence over the other statutes looking at the purpose and intention of the Act 2005. 24. It is also submitted by the State that Section 72 of the Act 2005 would have a clear precedence over the other statutes looking at the purpose and intention of the Act 2005. 24. Anyhow, the learned Single Judge, after taking into consideration the arguments advanced by the appellants that the activities are done in violation of the provisions of the aforesaid Acts and the report of the experts, has arrived at the conclusion that by virtue of Section 72 of the Act 2005, what is important is to avoid loss of life of the people and the damages occurred due to the flooding, the major cause of which is the sandbar at the river mouth adjoining the Arabian Sea at Thottappally Spillway region. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the appeal is preferred by the petitioners. 25. We have heard learned counsel for the appellants Sri. Liju V. Stephen, learned Senior Government Pleader Sri. S. Kannan and Government Pleader Sri. Pramod P. G. for the State and its officials, learned Senior Counsel Sri. E. K. Nandakumar for the IREL, learned Senior Counsel Sri. K. Anand for the KMML and Sri. M. P. Prakash for the Kerala Coastal Zone Management Authority and perused the pleadings and material on record. 26. Respective counsel have addressed their arguments relying upon the pleadings discussed above. As we have pointed out above, the basic contention advanced by the learned counsel for the appellants is that the provisions of the Act 1957 are violated. We find that there is no mining lease issued under the Act 1957, however the contention of the appellants is that the activities undertaken by the State Government and the companies are mining operations. 27. In order to understand the contention advanced by the appellants, a reference to some of the provisions would be worthwhile. The Act 1957 is an Act to provide for the development and regulation of mines and minerals under the control of the Union. A 'mining lease' is defined thereunder to mean a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. 'Mining operations' is defined to mean any operation undertaken for the purpose of winning any mineral. 28. Here is a case where the State Government has issued the impugned Ext. A 'mining lease' is defined thereunder to mean a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. 'Mining operations' is defined to mean any operation undertaken for the purpose of winning any mineral. 28. Here is a case where the State Government has issued the impugned Ext. P2 Government Order dated 31.05.2019 apparently invoking the powers conferred under the Act 2005 in order to tide over the accumulation of sand in the Thottappally Spillway which has affected the free flow of flood water to the Arabian Sea, risking the Kuttanad area by flooding during the monsoon season 2018, which witnessed severe flooding in the area. 29. It is true that in Ext. P2, the State Government has relied upon the reports of M. S. Swaminathan Research Foundation and the IIT, Madras which recommended clearance of sandbar at the mouth of the Spillway and deepening and widening of the leading channel for de-risking the flood problem in Kuttanad. The State Government has also noted that since the sand deposits are said to have contained regulated minerals, the disposal of the sand can be entrusted only to the organizations in the public sector. It was accordingly that IREL and KMML approached the Government for sand removal; and based on the decision in the meeting held by the Minister of Irrigation on 24.01.2019 in the presence of the technical experts, invited Expression of Interest on 26.02.2019 from the said organizations and their quotation for removal of sand quoting a rate of Rs. 290/m3. 30. However, later, based on various other factors, the companies have agreed for the removal at the rate of Rs. 464.55/m3 for the sand. It was also decided to take urgent action to execute necessary agreements with the public sector undertakings and to move forward to avoid the loss of sand during the monsoon so as to allow free flow of water through the river mouth. 31. It is true that learned counsel for the appellants have relied upon various study reports in order to establish the contention that the study reports were overlooked by the State Government and the action of removal of the sandbar was not recommended in the reports. 31. It is true that learned counsel for the appellants have relied upon various study reports in order to establish the contention that the study reports were overlooked by the State Government and the action of removal of the sandbar was not recommended in the reports. It is also pointed out that the reports have recommended only for deepening the leading canal and widening the same, however it can be seen from the impugned Government Order that the main purpose and objective of the removal of the sand bar is to protect the people of Kuttanad area and their agricultural activities. 32. Learned counsel for the appellants has also relied upon the provisions of the Act 2005 and submitted that there is a National Disaster Management Guidelines in which clear plans are made with respect to flood prevention preparedness and mitigation. Relying upon the guidelines, it is submitted that there is no guideline issued by the National Disaster Management Authority for removal of the sandbar and therefore the State Government was not right in overlooking the guidelines. 33. Relying upon guideline No. 3.2.3 issued by the Government of India in January 2008, learned counsel for the appellants submitted that a channel can be made to carry flood discharge at levels lower than its prevailing high flood level by improving its discharge carrying capacity. It is also submitted that going by the guidelines, channel improvement aims at increasing the area of flow or the velocity of flow, or both, to increase its carrying capacity. It is also pointed out that the guidelines also states that wherever required and subject to techno-economic considerations, the State Governments will identify the locations and take up appropriate channel improvement works to increase the velocity and / or the area of flow and reduce the flood level in the river depending upon the site-specific conditions. 34. That apart it is submitted that diverting all or a part of discharge into a natural or artificially constructed channel, lying within or in some cases outside the flood plains is a useful means of lowering water levels in the river and the diverted water may be taken away from the river without returning it further downstream or it may be returned to the river some distance downstream or to a lake or to the sea. 35. 35. Therefore, according to the learned counsel for the appellants, when clear guidelines are provided by the National Disaster Management Authority, the State had no other option than to accept the methodologies specified under the guidelines, and overlooking the same is nothing but a violation of the provisions of the Act 2005. 36. In order to address the said issue, we think it is only appropriate that the reason for the introduction of Act 2005 is taken into account. The Act 2005 is an Act to provide for the effective management of disasters and for matters connected therewith or incidental thereto. The statement of objects and reasons clearly shows that the Government have decided to enact a law on disaster management to provide for requisite institutional mechanism for drawing up and monitor the implementation of the disaster management plans, ensuring measures by various wings of Government for prevention and mitigating effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation. Therefore the Government really thought that the enactment will facilitate effective steps for the mitigation of disasters, prepare for and coordinate effective response to disasters, as also matters connected therewith or incidental thereto. 37. 'Disaster' is defined under Section 2(d) of Act 2005 to mean a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. 38. Section 2(e) deals with 'disaster management' which specifies that it is a continuous and integrated process of planning, organizing, coordinating and implementing measures which are necessary or expedient for (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; (viii) rehabilitation and reconstruction. 39. 39. Establishment of National Disaster Management Authority is dealt with under Section 3 of Act 2005 and the Chairperson of the said authority is the Prime Minister of India with members not exceeding 9 to be nominated by the National Authority. 40. Section 6 deals with the powers and functions of National Authority and sub section (2) thereto makes it clear that among others the National Authority is vested with powers to lay down guidelines to be followed by the State Authorities in drawing up the State plan; and to lay down guidelines to be followed by the different Ministries or Departments of the Government of India for the purpose of integrating the measures for prevention of disaster or the mitigation of its effects in their development plans and projects. In order to support the National Disaster Management Authority, the Authority is vested with powers to constitute various committees and sub-committees. Therefore, it can be seen that what is imperative under Section 6 of Act 2005 is the obligation of the State Government to take into account the guidelines while preparing the State plan. 41. State Disaster Management Authority is dealt with under Section 14 of the Act which obligates the State Government by notification in the official gazette to establish a State Disaster Management Authority for the State which consists of a Chairperson and members not exceeding 8; and the Chairperson to be the Chief Minister of the State Government. The State Authority is vested with powers to create committees and appoint employees for carrying out its functions. 42. Section 18 deals with powers and functions of the State Authority and sub-section (1) specifies that the State Authority shall have the responsibility for laying down policies and plans for disaster management in the State. Sub-section (2) clearly specifies that the State Authority may lay down the State Disaster Management Policy; and to approve the disaster management plans prepared by the Departments of the Government of the State; lay down guidelines to be followed by the Departments of the Government of the State for the purpose of integration of measures for prevention of disasters and mitigation in the development plans and projects and provide necessary technical assistance therefor; coordinate the implementation of the State Plan etc. 43. Section 25 deals with the constitution of the District Disaster Management Authority with the District Collector as its Chairperson. 43. Section 25 deals with the constitution of the District Disaster Management Authority with the District Collector as its Chairperson. Various powers of the District Authority are enumerated under Section 30 and sub-section (1) thereto clearly specifies that the District Authority shall act as the District planning, coordinating and implementing body for disaster management and take all measures for the purposes of disaster management in the District, in accordance with the guidelines laid down by the National Authority and the State Authority. 44. Among other powers conferred under sub-section (2) of Section 30, the District Authority is obligated to prepare a disaster management plan including district response plan for the District; coordinate and monitor the implementation of the National Policy, State Policy, National Plan, State Plan and District Plan; ensure that the areas in the District vulnerable to disasters are identified and measures for the prevention of disasters and the mitigation of its effects are undertaken by the Departments of the Government at the District level as well as by the Local Authorities; ensure that the guidelines for prevention of disasters, mitigation of its effects, preparedness and response measures as laid down by the National Authority and the State Authority are followed by all Departments of the Government at the District Level and the Local Authorities in the District; give directions to different authorities at the District level and Local Authorities to take such other measures for the prevention or mitigation of disasters as may be necessary; lay down guidelines for prevention of disaster management plans by the Department of the Government at the District level and Local Authorities in the District. 45. Therefore, on a conjoint reading of the powers conferred on the National, State and District Authorities, it is quite clear and evident that the action intended under the Act 2005 is a coordinated action. It may be true that when the National Disaster Management Authority prescribes a National guideline, the State Government may have to look into the same while preparing the State Plan, and the District Authority may be obligated to bear in mind the guidelines issued by the National as well as the State Authority. Here is a case where the appellants have no contention that with respect to a sandbar naturally created in a river mouth is taken care of under the guidelines issued by the National Authority in the year 2008. Here is a case where the appellants have no contention that with respect to a sandbar naturally created in a river mouth is taken care of under the guidelines issued by the National Authority in the year 2008. As stated above, the National Authority has stated in the guideline with respect to the deepening of the channel or diversion of the rain water into other rivers and water bodies so as to mitigate any flood situation. 46. The contention put forth by the State Government is that the guidelines issued by the National Authority with respect to the deepening and desilting is undertaken by the State Government, but that by itself will not resolve the situation in so far as the flooding in the Kuttanad area is concerned, and if the sand bar is not removed continuously, thus ensuring free flow of water, the disaster due to the flooding in 2018 and 2019 can occur again. 47. So also it can be seen that various other powers are given to the District Authority under the Act in order to deal with any threatening disaster situation or disaster. Moreover, as per Section 38, the State Government is mandated to take measures subject to the provisions of the Act specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management. Sub-section (1) of Section 38 would clearly show that the State Government is obligated and duty bound to take such further steps apart from the guidelines issued by the National Authority as it deems necessary or expedient in order to tide over any disaster and for preparedness to avert any disaster. 48. Section 39 also specifies responsibilities of Departments of the State Government to take all measures necessary for prevention of disasters, mitigation, preparedness and capacity-building in accordance with the guidelines laid down by the National Authority and the State Authority. 49. Section 40 also obligates every Departments of the State Government to prepare a Disaster Management Plan in conformity with the guidelines laid down by the State Authority and prepare a Disaster Management Plan which shall lay down the types of disaster to which different parts of the State are vulnerable and others. 50. 49. Section 40 also obligates every Departments of the State Government to prepare a Disaster Management Plan in conformity with the guidelines laid down by the State Authority and prepare a Disaster Management Plan which shall lay down the types of disaster to which different parts of the State are vulnerable and others. 50. Therefore, on a conjoint reading of the provisions, it can be seen that what is relevant and significant is prevention of disaster and preparedness for the same. Even though the Union of India is a party to the writ appeal, it has no case that the State Government or any other authority have overlooked the guidelines issued by the National Authority. 51. Moreover, Section 72 of Act 2005 deals with overriding effect of the Act which clearly specifies that the provisions of the Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act. 52. In our considered opinion, Section 72 of the Act 2005 has two limbs. The first one dealing with the existing law and the second limb dealing with any instrument having effect by virtue of any law other than the Act meaning thereby that it takes in any future laws made by the Union Government or the State Government. 53. Now we come to the contention advanced by the appellants and the Standing Counsel for the Coastal Zone Management Authority rested on the notification 2011. According to the learned counsel for the appellants, for the removal of the sandbar, prior permission of the coastal zone authority is required. The Coastal Regulation Zone notification 2011 is issued by virtue of the powers conferred under sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Act 1986. There is no dispute that the area in question would come under the CRZ IB, but it is to be decided as to whether an activity undertaken to avert a disaster under the Act 2005 would require a prior clearance or post clearance from the Coastal Zone Management Authority. 54. There is no dispute that the area in question would come under the CRZ IB, but it is to be decided as to whether an activity undertaken to avert a disaster under the Act 2005 would require a prior clearance or post clearance from the Coastal Zone Management Authority. 54. Learned counsel for the appellants as well as the Coastal Zone Management Authority basically relied upon clause 3(iv)(d) of the notification 2011 and submitted that measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge etc. would come under the prohibited activity. 55. However, learned Senior Counsel Sri. E. K. Nandakumar appearing for the IREL Ltd submitted that clause 3(iv) deals with land reclamation, bunding or disturbing the natural course of sea water and therefore the requirement contained under sub-clause (d) is only in respect of land reclamation, bunding etc and the same cannot be put forth in the matter of removal of a sand bar. We find force in the said contention because in the case at hand, nobody has a contention that any such eventuality as is contained under sub clause (d) is undertaken by any of the companies or the State Government. 56. Yet another contention advanced is that as per clause 3(xiii) dressing or altering the sand dunes would come under a prohibited activity. In our considered opinion, the case at hand is only dealing with a sandbar and not sand dunes. In fact, the learned Single Judge has made a clear distinction by and between the sand dunes and the sandbar by referring to various dictionaries. 57. Learned respective counsel for the appellants as well as the Disaster Management Authority have also addressed arguments relying upon clauses 3(x) and 4 of the notification dealing with the mining of sand, and other minerals, etc. However, we have already stated above that there is no mining activity taking place in accordance with the Act 1957, but the activity undertaken by the public sector undertakings at the initiative of the State as well as the District Management Authority is to make preparations to deal with any runoff and consequent flood situations. 58. However, we have already stated above that there is no mining activity taking place in accordance with the Act 1957, but the activity undertaken by the public sector undertakings at the initiative of the State as well as the District Management Authority is to make preparations to deal with any runoff and consequent flood situations. 58. Learned counsel for the appellants as well as the Coastal Zone Management Authority have also submitted that the Disaster Management Act being a 2005 one and the Coastal Regulation Zone notification is of the year 2011, it would have an overriding effect over the provisions of the Act 2005. 59. We are unable to agree with the same for the basic reason that a non-obstante clause in a statute or different statutes when coming in conflict would have to be considered taking into account the object and purpose of the Act . This question was considered by the Hon'ble Apex Court in Praneeth K. and Others v. University Grants Commission and Others [ AIR 2020 SC 5510 ] wherein the question analyzed concerns the guidelines issued by the University Grants Commission vis-a-vis the provisions of the Disaster Management Act. Hon'ble Apex Court had held that the Act 2005 empowers the State Disaster Management Authority, as well as the State Government to take a decision for prevention and mitigation of a disaster and the action taken by the authorities under the Disaster Management Act, have been given overriding effect to achieve the purpose and object of the Act; that in case of a disaster the priority of all authorities under the Disaster Management Act is to immediately combat the disaster and contain it to save human life; that saving of life of human being is given paramount importance and the Act 2005 gives primacy, priority to the actions and measures taken under the Act over inconsistency in any other law for the time being in force. 60. 60. In the judgment in Praneeth K. (supra), the Hon'ble Apex Court had considered the significance of a non-obstante clause taking into account the Judgment in State (NCT of Delhi) v. Sanjay [ (2014) 9 SCC 772 ] wherein it was held that it is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. 61. So also the Hon'ble Apex Court had occasion to consider the said question in S. Vanitha v. the Deputy Commissioner, Bengaluru Urban District and Others [2021 AIR SC 177], and held that later law need not overrule the earlier legislation with non-obstante clause but the purpose of the legislation and lyric interpretation to be looked into. Harmonizing competent reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2013 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, it was held in the said judgment that principles of statutory interpretation dictate that in the event of two special acts containing non-obstante clauses, the later law shall typically prevail, however in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other and the primary effort of the interpreter must be to harmonize and not excise. 62. So also in Bank of India v. Ketan Parekh [ (2008) 8 SCC 148 ], it was held that cases might arise where both the enactments have the non-obstante clause then in that case, the proper perspective would be that one has to see the subject and dominant purpose for which the special enactment was made and in case the dominant purpose is covered by that contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons. 63. 63. In Sarwan Singh and Others v. Kasturi Lal [ (1977) 1 SCC 750 ], it was held by the Hon'ble Apex Court that when two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. But since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration. It was also held therein that for resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a, fair meaning to the language of the law. 64. As we have pointed out in the beginning, the Disaster Management Act, 2005 was brought into force to deal with every circumstance of disaster, to prevent it and prepare plans and guidelines at the National, State, District and even at the micro level. The intention behind the Act is to ensure that the human life is saved and mitigate the circumstances so as to avoid damages which can cause devastating effect on the whole community or State or District specific. 65. Even though learned counsel for the Coastal Zone Management Authority has advanced an argument that the Coastal Regulation Zone notification being a later one, the overriding effect of Section 72 of Act 2005 may not have much effect and force on the notification 2011, we are unable to agree with the same on account of the preposition of law laid down by the Hon'ble Apex Court as above and also for the reason that Section 72 takes in not only the existing laws as on the date of introduction of Act 2005, but all subsequent notifications laws etc. by virtue of the second limb contained thereunder. 66. Now, considering the facts and circumstances involved in the case at hand, the action was initiated by the State Government and the District Authority after taking into account various serious impending factors to avoid disaster in the future, fundamentally bearing in mind the loss of life and damages occurred during the flood 2018. Moreover, the specialized study also would show that the sandbar at the Thottappally Spillway region is creating a blockade for the free flow of water. 67. Moreover, the specialized study also would show that the sandbar at the Thottappally Spillway region is creating a blockade for the free flow of water. 67. Even the appellants are not having a case different from that, but they recommend that a continuous removal of the sandbar is not required and the State Government has to provide Groins permanently which would prevent the sand bar from being formed. 68. In our view, these are all policy decisions taken by the State Government on the basis of various reports / studies conducted and discussions with experts and specialized agencies. When such a policy decision is taken by the State Government by understanding the situation and to save the life of the people, we do not think a recommendation or suggestion made by some of the citizens would have precedence over the efforts taken by the State Government in order to laid down a policy with respect to the flood prevention mitigation, and disaster management. 69. In regard to the realm of interference of the courts with respect to a policy decision taken by the State Government, learned Senior Counsel Sri. E. K. Nandakumar has invited our attention to the judgments of the Hon'ble Apex Court in Jal Mahal Resorts Pvt. Ltd. v. K. P. Sharma and Others [ (2014) 8 SCC 804 ] and Centre for Public Interest Litigation v. Union of India and Others [ (2016) 6 SCC 408 ]. 70. In Jal Mahal (supra), the Hon'ble Apex Court has held as follows:- “137. From this, it is clear that although the Courts are expected very often to enter into the technical and administrative aspects of the matter, it has its own limitations and in consonance with the theory and principle of separation of powers, reliance at least to some extent to the decisions of the State Authorities, specially if it based on the opinion of the experts reflected from the project report prepared by the technocrats, accepted by the entire hierarchy of the State administration, acknowledged, accepted and approved by one Government after the other, will have to be given due credence and weightage. In spite of this if the Court chooses to overrule the correctness of such administrative decision and merits of the view of the entire body including the administrative, technical and financial experts by taking note of hair splitting submissions at the instance of a PIL petitioner without any evidence in support thereof, the PIL petitioners shall have to be put to strict proof and cannot be allowed to function as an extraordinary and extra judicial ombudsmen questioning the entire exercise undertaken by an extensive body which include administrators, technocrats and financial experts. In our considered view, this might lead to a friction if not collision among the three organs of the State and would affect the principle of governance ingrained in the theory of separation of powers. In fact, this Court in the matter of M.P. Oil Extraction v. State of M.P., at p. 611 has unequivocally observed that: “41. the power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic, set-up to which polity is so deeply committed cannot function properly unless each of three organs appreciate the need for mutual respect and supremacy in their respective fields.”” 71. In Centre for Public Interest Litigation (supra), it is held as follows:- “22. Minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of deliberations of the technical experts in the fields inasmuch as Courts are not well-equipped to fathom into such domain which is left to the discretion of the execution. It was beautifully explained by the Court in Narmada Bachao Andolan v. Union of India and reiterated in Federation of Railway Officers Assn. v. Union of India in the following words: “12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. v. Union of India in the following words: “12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters.”” 72. The deliberation made above would make it clear that the State Government and the District Disaster Management Authority by the impugned order and agreement decided to remove the sandbar so as to avert the flood situation in future by ensuring easy and free flow of water; and in that process the removal of the sandbar is only incidental in nature in order to translate the true intention and spirit of the Disaster Management Act, 2005, the National Guidelines, State Plans, District Plans, etc. 73. Learned Senior Government Pleader Sri. S. Kannan, has also submitted that the writ appeal is barred by the principles of res judicata since a common judgment was rendered by the learned Single Judge in W. P. (C) Nos. 15520 of 2021 and 11060 of 2020, however appeal is preferred from W. P. (C) No. 15520 of 2021 alone and has invited our attention to a Division Bench judgment of this Court in Sajithkumar E. P. v. Assistant Educational Officer and Others [ 2016 (4) KHC 353 ] wherein it was held that on a common issue, when two rival contenders filing two writ petitions, the Court allowed the one and dismissed the other by a common judgment and the aggrieved party only filing a writ appeal against the judgment that was dismissed, is hit by res judicata as no appeal is filed against the other decision allowing the writ petition. 74. In our considered opinion here is a case where both the writ petitions were filed based on similar contentions and one of the parties have not come forward to prefer an appeal. 74. In our considered opinion here is a case where both the writ petitions were filed based on similar contentions and one of the parties have not come forward to prefer an appeal. But that by itself will not detain a person aggrieved to pursue the remedy that is available to him or her. Therefore, we do not find much force in the said contention. 75. In that view of the matter, we are of the clear opinion that the appellants have not made out a case in the appeal to interfere with the judgment of the learned Single Judge. 76. In the public interest writ petition captioned above, as pointed out above M/S IREL Ltd is removing the sandbar of the Thottappally Spillway region and it is being taken to the port area and the atomic mineral is segregated by installing a spiral machine and the beach sand is left in the beach area itself. Therein also the contention advanced by the public interest litigant is that the activity is being carried out in blatant violation of the provisions of the CRZ notifications and seeks interference with the decision taken by the Purakkad Grama Panchayat to withdraw the stop memo issued to the said Public Sector Undertaking . 77. Various documents are also produced along with the same including the report submitted by the Station House Officers of various Police Stations when strike took place with respect to the removal of the sand from the sandbar and the activity undertaken by the public sector undertaking in question. 78. However, the contention advanced by the company is that it is not doing any mining operation or any operation of industrial activity, but it is undertaking the work entrusted to it and in that process, a spiral unit is set up to segregate the impurities and trashes from the sand removed and make the sand free from atomic minerals. It is also pointed out that after the said process, it is handed over to the Harbour Engineering Department. 79. Anyhow, it is clear that the said work is entrusted with the public sector undertaking; and we also do not find any allegations of mala fides concerning the entrustment. It is also pointed out that after the said process, it is handed over to the Harbour Engineering Department. 79. Anyhow, it is clear that the said work is entrusted with the public sector undertaking; and we also do not find any allegations of mala fides concerning the entrustment. Therein also, we are of the clear opinion that the spiraling work is done by the public sector undertaking in order to remove the atomic mineral from the sand removed from the sandbar at the Thottappally Spillway region. 80. The rest of the contention advanced by the public interest litigant are dealt with by us in the previous paragraphs and we do not wish to repeat the same; and therefore the findings rendered in the appeal would equally apply to the public interest writ petition also, since we find that the entire action is initiated to implement the provisions of the Act 2005. Therefore we are of the view that it is with the primary intention of protecting the public interest of saving humans from flood situations alone the State Government undertakes the incidental activity of removing the sand bar through public sector undertakings. In this regard we are reminded of the duty of the state to protect the life and liberty of the citizens as envisioned under Article 21 of the Constitution of India. That Article 38 (1) of part 1V of the Constitution makes it clear that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political are prevalent. Therefore, there can be no doubt that being a welfare state, it is duty-bound under the constitution to protect the interests and wellbeing of the citizens without fail; without which the other fundamental rights guaranteed under part 111 of the constitution would be meaningless and ineffective. 81. Therefore, there can be no doubt that being a welfare state, it is duty-bound under the constitution to protect the interests and wellbeing of the citizens without fail; without which the other fundamental rights guaranteed under part 111 of the constitution would be meaningless and ineffective. 81. Even though learned counsel for the writ petitioner relied upon the judgments of the Hon'ble Apex Court in S. Jagannath v. Union of India [ (1997) 2 SCC 87 ], Kapico Kerala Resorts Pvt. Ltd. v. State of Kerala and Others [ (2020) 3 SCC 18 ] and Gurusimran Singh Narula v. Union of India and Another [ (2021) 1 SCC 152 ], decisions rendered on the Coastal Regulation Zone notifications 2011 and 2019, we are of the view that in the facts and circumstances of the case and the deliberations made above, the said judgments may not have any bearing and direct implication to the issues involved in the matters at hand. 82. Upshot of the above discussion is that petitioner has failed to make out any case in the public interest writ petition also. Needless to say, the writ appeal and the writ petition fails and they are dismissed.