Introduction

The State of Kerala has a vast coastline of approximately 585 km. In Kerala, 9 out of 14 districts of the state are along the coastline. The state has 17 ports including 1 Major Port-Cochin Port; 3 Intermediate Port- Beypore, Alappuzha and Neendkara and 13 Minor Ports- Kovalam- Vizhinjam, Valiyathura, Thankasseri, Kayamkulam, Munambam/Kodungalloor, Ponnani, Vadakara, Thalasseri, Kannur, Azhikal, Neeleswaram, Kasaragod and Manjeswaram. The Vizhinjam International Seaport project is also underway at Port of Trivandrum on PPP basis. The total cargo exports from Kerala state were 2,98,799 tonnes and Cochin Port itself handles nearly 5% of the total traffic every year with an average of approximately 28 million tonnes. The Management of Minor Ports in Kerala is under Kerala Maritime Board, Cochin Port is under Cochin Port Trust and Vizhinjam Seaport is under Vizhinjam International Seaport Limited.

History

1. Cochin Port Trust:

Cochin Port, also known as Kochi Port, is a major port on the Arabian Marine – Laccadive Sea – Indian Ocean Sea route in the city of Kochi and is one of India’s largest ports. The Cochin Port Trust (CoPT), a government of India institution, governs the port and was founded in 1928 and has served for more than 90 years. [1]

The Port of Cochin was named a major port by the Maritime Board of British India in 1932, and it was accessible by any vessel with a draught of fewer than 30 feet. On May 19, 1945, it was restored to civil authorities.[2] Following India’s independence, the port was taken over by the government of India, and in 1964, the port’s administration was delegated to a Board of Trustees under the Major Port Trusts Act. [3]

Cochin Port Trust is an autonomous organisation under the government of India that is governed by a government-appointed Board of Trustees. The chairman of the board also serves as the chief executive officer. The government may, from time to time, appoint trustees to the Board who represent diverse interests. The chairman is helped by the deputy chairman, who is assisted by the following port department heads and officials:

• General Administration
• Traffic
• Finance
• Marine
• Civil Engineering
• Mechanical Engineering
• Medical 

2. Kerala Maritime Board:

Kerala Maritime Board was formed vide Kerala Maritime Board Act, 2017 passed on 16/09/2017.[4] Accordingly, the Chairman and members of Kerala Maritime Board were appointed by G.O (MS) No.01/08 (F&PD) dated 02/02/2018.[5] The Board oversees the survey, registration, and scientific evaluation of the Coastal Transport, development of Ports in the Coast of Kerala. The act provides for the constitution of the Kerala Maritime board for the non-major ports in the state of Kerala and to vest administration, control and management of such ports and certain undertakings in that board and matters connected therewith. [6]

3. Vizhinjam International Seaport Limited:

The Vizhinjam International Transhipment Deepwater Multipurpose Seaport is a large-scale project undertaken by the Kerala government. It is primarily intended for container transhipment, as well as multi-purpose and breakbulk cargo. The port is presently being built on a landlord model with a Public-Private Partnership component on a design, build, finance, operate, and transfer (“DBFOT”) basis. The private partner, Concessionaire M/s Adani Vizhinjam Port Private Limited, began building on December 5, 2015. The port’s construction was planned to be finished on December 4th, 2019, according to the concession.[7]

Vizhinjam International Seaport Limited (VISL) is a special purpose government company (wholly owned by the Government of Kerala) that will act as an implementing agency for the development of a greenfield port – Vizhinjam International Deepwater Multipurpose Seaport – in Vizhinjam, Thiruvananthapuram, Kerala’s capital city. The port will include both a cargo and a passenger terminal. The port will include an in-port rapid transit metro system to link passengers within the port’s passenger terminal. The port will be connected through the New Bypass, which will run from Thiruvananthapuram to Thiruvallam and Kovalam.

The blog intends to explore and analyse the nature of disputes which arise during Infrastructure development in Port with a focus on Ports in Kerala. Port Facility means a wharf, berth, docks, pier, harbour, etc. Section 3(4) of The Indians Ports Act 1908 has defined ports as “a ‘port’ includes also any part of a river or channel in which this Act is for the time being in force”.[8].  Development of Port Infrastructure requires long term capital investment and compliances with various local and national compliances. The Port Management will have to take care of compliances and disputes during the development of Port Infrastructure.

There are different kinds of disputes which arise during Port Development. There are Writ Petitions which arise challenging the tender procedure for port development activities, claims of environmental pollution, citizens approaching Court for enhancement of compensation for loss of livelihood, etc. Some of the recent cases are provided here below:

• State of Kerala v. Sakeer [9]

In 2016 August, the Government of Kerala formulated a new policy in manual dredging which suggested the ouster of co-operative societies from manual dredging in the Port channels and decided to entrust the dredging works to Local Self Government instead of cooperative societies. The Policy was challenged before the High Court of Kerala in WPC 22959/2015. In the High Court on 02/11/2016, and the Honourable High Court of Kerala dismissed all the connected cases of seven petitioner societies challenging the new policy of the Govt. through WP 22959 of 2015.[10]

The same Government order was challenged before NGT, Chennai Zonal Bench, through OA 259 of 2016[11]. The NGT Zonal Bench considered the OA 259 of 2016 filed earlier and permitted manual dredging in Ponnani Port stating that it does not require Environmental Clearance but directed the Government through interim order not to sell the dredged material to third parties and the same will be securely kept in the premises of port. As a result, dredging continued in allegiance to the NGT order but the transit, purification and online sale of sand was stopped. The Petitioner filed an appeal in the Honourable Supreme Court, to stay the dredging operations at Ponnani, challenging the interim order of NGT that permitted dredging.

The State Government approached the Honourable High Court through WP 20379 of 2017 challenging the NGT interim order in OA 259 of 2016 and subsequently the interim order of NGT was stayed by the Honourable High Court of Kerala. Eventually, the High Court of Kerala allowed the application filed by the State Government, against the order of the NGT in OA 259 of 2016 prohibiting the sale of dredged material, and the order of the NGT was set aside.

It was held by the court that it could only lead to further blocking of the water channel; with the sand sliding back into the water. Order to the W.P.No. 20379/2017 extent that requires the sand to be kept without a sale is total without jurisdiction. This Court has held that the portion of the order challenged before this Court being total without jurisdiction, the writ petition is maintainable and on the same reasoning, the order to that extent has to be set aside.[12]

Time and again, disputes arise regarding lack of compliance with CRZ violation, permission from Kerala Coastal Management Authority and environmental clearances. It is necessary to conduct due diligence regarding compliance with such laws.

• S. Dileep v. Union of India [13]

This writ petition was filed in the form of a Public Interest Litigation, alleging that the 5th respondent violated the Coastal Regulation Zone Notification 2019 by constructing a building at Muthalapozhi Fishing Harbour in Chirayinkeezhu, Thiruvananthapuram. Petitioner requested for a directive to respondents 1–4, namely the Central Government, the State Government, and the Harbour Engineering Department and the Kerala Coastal Zone Management Authority to destroy the aforementioned construction, as well as for other related remedies. Petitioner claims that the 5th respondent, who had agreed to build the Vizhinjam multifunctional seaport in Thiruvananthapuram as part of an agreement with the State of Kerala in 2015, had chosen to build a small barge load-out facility at Muthalapozhi located at Perumathura, Thiruvananthapuram. The same was built specifically for the transportation of stone. WPC 8013/19 was thus dismissed with the observation that, as authorization had already been granted, there was no need to proceed with the writ petition.

• K. N. Unnikrishnan v. Cochin Port Trust [14]

This public interest writ petition was filed for a direction to the respondents/authorities to take urgent steps to prevent dumping of sewage/toilet waste/garbage waste from vessels calling at Cochin Port in public places. The wastes from these vessels are taken out of the port by private parties on the basis of licences issued by the 1st respondent Port. The action of the 1st respondent Cochin Port and IGTPL / Vallarpadam Terminal Operator in discharging /importing such toilet waste and garbage waste from foreign vessels calling at their respective terminals and dumping in public places amounts to making Cochin the dumping place of toilet/garbage waste of foreign vessels and is a clear violation of Hazardous Wastes (Management, Handling and Transboundary) Rules, 2008.

Toilet wastes come under the definition of Ecotoxic which comes under H 12 in Schedule III Part C of the Hazardous Waste (Management, Handling and Transboundary Movement), Rules, 2008. As per Section Rule 14 of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, the import and export of hazardous wastes will require the prior written permission of the Central Government. The case was filed in 2011 and it was finally heard and decided in 2020. The court in this particular case held that despite the lacunae Cochin Port is trying its best to follow MARPOL convention in its true spirit and the court was satisfied that sufficient steps have been taken with regards to the relief sought for in the writ petition. Thus, the writ petition was disposed of directing the respondents to ensure the implementation of the steps already taken to avoid nuisance and without giving room for any further litigation to take place.

It is essential to comply with requirements such as MARPOL while planning Port Infrastructure development projects in order to avoid such litigation which arises at a later stage.

• Rajan. S. and others v. State of Kerala and others[15]

The petitioners were Fishermen who were traditionally engaged in the collection of shellfish using small wooden boats. They belong to a place called Mulloor in Thiruvananthapuram District which comes under the proposed project site of Vizhinjam International Deepwater Multipurpose Seaport Project. It was submitted that the State Government of Kerala appointed a livelihood Impact Appraisal Committee under the Chairmanship of District Collector, Thiruvananthapuram regarding rehabilitation and resettlement of affected persons by the Implementation of Vizhinjam Project. The package for affected persons who lost land was placed in the first category and compensation was awarded as part of the land acquisition process 2nd category was those whose livelihood was affected. The Appraisal Committee was under the Chairmanship of Revenue Divisional Officer, Thiruvananthapuram and the Appellate Committee was under the Chairmanship of District Collector, Thiruvananthapuram. The Chairman of the Livelihood Impact Appraisal Committee (Sub Collector, Thiruvananthapuram) submitted the report before the State Government on rehabilitation and resettlement of affected persons for approval.

The District Collector, Thiruvananthapuram was authorized to hear objections and submitted a final report to the Government. The Appellate Committee submitted its report to the Government, approved the report and published G.O. No. Petitioners come under the 2nd category accordingly; their fishing equipment and small wooden boats were acquired and Mahazer was prepared. Petitioners’ names were included in the draft report of the rehabilitation and resettlement project. It is submitted that all the petitioners are members of Kerala Fishermen’s Welfare Fund Board and are holding Identity Cards issued by the Government of India, Ministry of Agriculture, Marine Fishers Identity Card. Government is duty-bound to pay adequate compensation and alternative sources of livelihood.

It was held in this case that the statutory authority has only conducted a peripheral enquiry in respect of the matter without providing any opportunity of participation to the petitioners and considering the evidence produced. Therefore, the writ petitions are disposed of directing the Livelihood Impact Appraisal Committee, which is a party in all these writ petitions to reconsider the issue with respect to the eligibility of the petitioners for the compensation on account of the construction of the Vizhinjam Port, after providing an opportunity of hearing to the petitioners irrespective of any orders passed in that regard.

• Dr. Raju Mathew v. the State of Kerala[16]

The Writ Petition was filed challenging the tender procedure adopted for procurement of construction-grade sand. While dismissing the claim of the Petitioner, the Court observed that the respondents’ primary goal in adopting the “Swiss Challenge Method” is to undertake the project/scheme with the intention of making accessible “construction-grade river sand”, because of the shortage of the product in the market as a result of numerous factors such as restrictive restrictions implemented and the growing demand as a result of continuing construction/developmental activities. The task is assigned only to the project proponent/successful bidder for project implementation, with the above-mentioned goal of obtaining “construction-grade sand” after desalination and elimination of all impurities. As a result, the State/respondents must guarantee that the product is “construction-grade sand”, devoid of salt and other contaminants, otherwise, the general public/customers may be put in danger/in a disadvantageous situation.

Any default in following tender procedures can lead to litigation and interim orders for a stay which may hinder the progress of the projects. It is essential to ensure that the tender procedures are transparent and legal.

Apart from the above facts, some of the aspects which need to be borne in mind are the following:

• Nokkukooli: Nokkukooli is an amount demanded by the local trade unions for allowing unloading of goods/materials without doing the unloading. It is banned by the Government of Kerala[17]. However, it is a factor that needs to be considered as a factor while setting timelines and estimating costs. ‘Nokkukooli’ issue had impeded the construction at the Beypore Port.[18]
• Strikes: Strikes interfere with the development projects creating delays and posing hurdles before the developers. The protests associated with the development of Vizhinjam Seaport had gained media attention.[19] It is important to consider it as a factor in agreements for development projects in Kerala.

Conclusion

The Government of Kerala through the newly formed Kerala Maritime Board is spearheading the Port Development in Kerala. The Vizhinjam Port (minor port) has gained attention by facilitating crew change for 300 vessels during the Pandemic. It has turned into a hub for crew change. [20] The Government has also launched projects for the development of Azhikal Port and Beypore Port. [21] The Kerala Maritime Board aims to develop the Port Infrastructure and has also declared incentives for Coastal Shipping. [22] boost to the Ports in Kerala through Public-Private Partnership. The Government/ Kerala Maritime Board also has declared incentives for Coastal Shipping.[23] The prospects of Port Development in Kerala appear bright with the new projects and proposals.

About the Authors

Dhanya Mallar is a Junior Partner at V.J. Mathew & Co

Muskaan Singh is a 4th Year Law Student at University of Petroleum and Engineering Studies (UPES), Dehradun.

Editorial Team

Managing Editor: Naman Anand

Editors-in-Chief: Aakaansha Arya and Akanksha Goel

Senior Editor: Gaurang Mandavkar

Associate Editor: Muskaan Singh

Junior Editor: Vidhi Saxena

Preferred Method of Citation 

Dhanya Mallar and Muskaan Singh, “Port Development in Kerala: Disputes and Due Diligence” (IJPIEL, 14 July 2021)

 <https://ijpiel.com/index.php/2021/07/14/3575/>

Endnotes

[1] Administration report and Annual Accounts 2015-2016, Cochin Port Trust, Willingdon Island, Cochin. https://cochinport.gov.in/sites/default/files/rti-voluntarily/1533881132-Admn.Report-1516.pdf

[2] L. Prakash, Dr. G. Pandurangan, A Study on Analysis of Export Performance of Kochi Port Trust, Volume 3 Issue 11 International Journal of Science and Research (2014).  https://www.ijsr.net/archive/v3i11/T0NUMTQxNDUz.pdf

[3] The Major Port Trusts Act, 1963.

[4] The Kerala Maritime Board Act, 2017.

[5] Minutes of the Board Meeting of the Kerala Maritime Board, The Government Guest House, Ernakulam (17 May, 2019). http://www.niyamasabha.org/codes/14kla/session_15/ans/u05250-270619-920000000000-15-14.pdf

[6] Supra note 4.

[7] Vizhinjam Port, Vizhinjam International Seaport Limited. https://www.vizhinjamport.in/home.html

[8] The Indian Ports Act 1908.

[9] State of Kerala v. Sakeer 2017 WP(C). No. 20379 of 2017 (4) KLJ 317.   

[10] State of Kerala v. Sakeer WPC NO 32962/2016.

[11] Mr Sakeer v. State of Kerala and Ors., OA No. 259/2016, National Green Tribunal (Southern Zone), Chennai, (May 22, 2017).

[12] Supra note 9, ¶ 9.

[13] S. Dileep vs Union of India W.P.(C) 1904/2018.; 2020 (1) KLT 406.[14] K. N. Unnikrishnan vs Cochin Port Trust WP(C). No.32389 OF 2011(S.

[15] Rajan. S. and others Vs. State of Kerala and others WP(C). No. 22832 of 2017.

[16] WP(C). No.881 of 2015 (I).

[17] R. Praveen, N.J. Nair, Radhakrishnan Kuttoor, George Jacob, Sam Paul, K.A. Shaji, Mithosh Joseph, C.S. Narayanan Kutty, Nokkukooli: The Ban And After, Kerala Bureau, The Hindu (May 19, 2018). https://www.thehindu.com/news/national/kerala/the-ban-and-after/article23938226.ece

[18] Ajay Kanth, Nokkukooli’ Spectre Looms Over Beypore Port, The New Indian Express (03 July, 2017).  https://www.newindianexpress.com/states/kerala/2017/jul/03/nokkukooli-spectre-looms-over-beypore-port-1623460.html

[19] Rajesh Abraham, A Spate of Strikes Smashing Kerala’s Ambitious Big Projects, The New Indian Express (12 November, 2017). https://www.newindianexpress.com/thesundaystandard/2017/nov/12/a-spate-of-strikes-smashing-keralas-ambitious-big-projects-1698785.html

[20] Vizhinjam To Be Declared Crew Change and Bunkering Hub, The Hindu (05 October, 2020). https://www.thehindu.com/news/national/kerala/vizhinjam-to-be-declared-crew-change-and-bunkering-hub/article32775136.ece

[21] Biju Govind, Govt. To Fast-Track Development of Ports, The Hindu (June 07, 2021). https://www.thehindu.com/news/national/kerala/govt-to-fast-track-development-of-ports/article34753205.ece

[22] Operational Incentive for Coastal Shipping Extended, The Hindu (June 08, 2020) https://www.thehindu.com/news/cities/kozhikode/operational-incentive-for-coastal-shipping-extended/article31776140.ece

[23] P Manoj, Kerala Maritime Board sets rates for coastal shipping incentive scheme, The Hindu Business Line (July 01, 2020).https://www.thehindubusinessline.com/economy/logistics/kerala-maritime-board-sets-rates-for-coastal-shipping-incentive-scheme/article31964914.ece