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2020 (1) TMI 1621 - SC - Indian LawsTerritorial Limits - Validity of inclusion of Nediyathuruthu island within CRZ - seeking a declaration that the CRZ Notification of 1991 is not applicable to the island - seeking police protection for completing the construction of the resort - direction for proceedings for the removal of encroachments to be continued - review of an order passed in a writ petition filed by the local fishermen claiming rights over the stake nets in the island directing the demolition of the constructions put up by the project proponent - continuation of proceedings for removal of encroachments. HELD THAT - The primary object of the Notification dated 14.03.2017 appears to be to address the issue as to how to deal with the projects and activities carried out without obtaining prior environmental clearance. The Notification seeks to declare the projects and activities requiring prior environmental clearance under EIA Notification 2006 but carried out without obtaining such clearance as cases of violation of the EIA Notification 2006 and it seeks to provide an opportunity to those violators to avail the benefit of a onetime clearance. The Notification dated 14.03.2017 does not deal with cases of violation of CRZ Notifications. Basis of the CRZ Notification 2019 issued on 18.01.2019 - HELD THAT - Paragraph 10.2 of the CRZ 2019 Notification states that all inland islands in the coastal backwaters and islands along the mainland coast shall be covered by the Notification. It further states that in view of the unique coastal systems of backwater islands and islands along the mainland coast along with space limitations in such coastal stretches CRZ of 20 meters from the HTL on the landward side shall uniformly apply. However paragraph 10.2(ii) states that activities shall be regulated as under (a) existing dwelling units of local communities may be repaired or reconstructed within 20 meters from the HTL of these islands but no new construction shall be permitted in this zone; (b) foreshore facilities such as fishing jetty fish drying yards net mending yard fishing processing by traditional methods boat building yards ice plant boat repairs and the like maybe taken up in CRZ limits subject to environmental safeguards. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher etc. Guidelines are to be put in place for identifying notifying and implementing CVCA but 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore the alternatives claimed by the appellants also do not appear to be viable for them. Appeal dismissed.
Issues Involved:
1. Applicability of CRZ Notification of 1991 to backwater islands. 2. Classification of Nediyathuruthu island under CRZ categories. 3. Validity of permits and clearances obtained by the project proponents. 4. Findings on encroachments and their legal implications. 5. Impact of subsequent CRZ Notifications (2011 and 2019) on the project. Detailed Analysis: Applicability of CRZ Notification of 1991 to Backwater Islands: The Supreme Court examined whether the CRZ Notification of 1991 applied to backwater islands like Nediyathuruthu. The High Court had held that both Nediyathuruthu and Vettila Thuruthu islands are covered by the CRZ Notification of 1991. The appellants argued that the CRZ Notification of 1991 did not apply to such islands and that they were brought under regulation only by the CRZ Notification of 2011. However, the Court upheld the High Court's view that the CRZ Notification of 1991 covered backwater islands influenced by tidal action, making the construction of the resort subject to these regulations. Classification of Nediyathuruthu Island under CRZ Categories: The appellants contended that their land fell under Category IV (small islands) of the CRZ Notification of 1991, and thus, the restrictions applicable to CRZ I or CRZ III should not apply. The High Court, supported by an expert opinion from Dr. K.V. Thomas, classified Nediyathuruthu island under CRZ I due to its ecological sensitivity, including the presence of filtration ponds. The Supreme Court agreed with the High Court's findings that the island was correctly classified under CRZ I, which prohibits new constructions within 200 meters from the High Tide Line (HTL). Validity of Permits and Clearances Obtained by the Project Proponents: The appellants had obtained various permits and clearances, including a No Objection Certificate (NOC) in 1996 and a Building Permit in 2007. They argued that these permits predated the CRZ Notification of 2011 and should be valid. However, the High Court found that the permits were issued in violation of the CRZ Notification of 1991, as the Panchayat was not competent to issue such permits without considering CRZ regulations. The Supreme Court upheld this view, noting that the Director of Panchayats had directed compliance with CRZ regulations as early as 1995, making the permits invalid. Findings on Encroachments and Their Legal Implications: The High Court had ordered a survey to determine the extent of encroachments by the appellants on Nediyathuruthu island. The survey revealed encroachments, leading to proceedings under the Kerala Land Conservancy Act. The appellants were given the opportunity to challenge the survey report in a competent forum. The Supreme Court found no reason to interfere with the High Court's findings on encroachments and upheld the direction to proceed with the removal of unauthorized structures. Impact of Subsequent CRZ Notifications (2011 and 2019) on the Project: The appellants argued that the CRZ Notification of 2011 and the subsequent Notification of 2019 should be considered, as they provided different regulatory frameworks. The Supreme Court noted that the CRZ Notification of 2019 reduced the distance parameter to 20 meters from the HTL but still prohibited new constructions within this zone, except for specific community-related activities. The Court found that the 2019 Notification did not confer any benefit on the appellants and that the entire Vembanad lake, including Nediyathuruthu island, was classified as a Critically Vulnerable Coastal Area (CVCA), requiring strict environmental protection. Conclusion: The Supreme Court dismissed the appeals, upholding the High Court's findings that the CRZ Notification of 1991 applied to Nediyathuruthu island, the permits obtained by the appellants were invalid, and the island was correctly classified under CRZ I. The Court also supported the High Court's directions for the removal of encroachments and found no merit in the appellants' arguments based on subsequent CRZ Notifications. The appeals were dismissed with no order as to costs.
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