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TMI Blog2020 (1) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... ke, Alappuzha District of the State of Kerala, on the basis of Kerala Coastal Zone Management Plan (hereinafter 'KCZMP') and the Coastal Regulation Zone Notifications, the project proponent has come up with the above appeals. 3. The High Court was concerned, in the batch of cases, about the development of resorts in two backwater islands, by name Vettila Thuruthu and Nediyathuruthu, located in Vembanad lake, Panavally Panchayat, in Alappuzha district of the State of Kerala. 4. By a common order passed on 25.07.2013, the High Court disposed of seven writ petitions, five of which related to Nediyathuruthu island and the other two related to the Vettila Thuruthu island. Out of the 5 writ petitions which related to Nediyathuruthu island, 3 were by (i) a group of traditional fishermen (ii) a public welfare Society and (iii) a trade union of fishermen and workers, all opposing the construction of the resort in the island. The other 2 writ petitions were by the proponent of the project, by name Kapico Kerala Resorts Private limited, referred to in the impugned judgment as 'the company', seeking police protection for the completion of construction and also challenging the inclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the dispute with regard to the construction of the resort in Vettila Thuruthu attained finality and the project got buried deep under the sea bed without any necessity for any further clearance from anyone. 7. However, in so far as Nediyathuruthu island is concerned, the appellant in these appeals filed, in the first instance, three special leave petitions, SLP (C) Nos. 3414334145 of 2013, on 07.08.2013 (after judgment was reserved in the special leave petitions in relation to Vettila Thuruthu island). Apart from filing three special leave petitions, the appellants herein also moved the High Court of Kerala by way of 6 petitions of review (5 by the company and 1 by its Director) in Review Petition Nos. 776 to 780 and 843 of 2013. These petitions for review were filed in October 2013. But by the time the petitions for review came up for hearing, the common judgment of the High Court had already been confirmed by this Court in Vaamika Island (supra) on 08.08.2013. Therefore, applying the doctrine of merger, the High Court dismissed the review petitions by its order dated 10.12.2013. Challenging the dismissal of only one of those 6 review petitions, namely RP No. 776 of 2013, ( ..... 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Category IV and hence, in the absence of any special demarcation of small islands, none of the restrictions can apply; (vi) that CZMP for Kerala under the 1991 Notification was prepared in a haphazard and hasty manner; (vii) that KCZMA was constituted by a notification dated 26.11.1998, with a mandate to formulate areaspecific management plans, but no such plans were formulated; (viii) that in the absence of any areaspecific criteria for determination of CRZ, the 1991 Notification is not applicable to backwater islands; (ix) that Annexure I of 1991 Notification classifies small islands as falling under Category IV, and CRZ II and CRZ III relate only to areas distinct from islands; (x) that since the average width of the backwater island where the appellants had completed construction, is only 2060 meters, the extension of the restriction relating to Category III will be violative of the right conferred under Article 300A; and (xi) that even if the 1991 Notification applies to small islands, Annexure I of the Notification specifically requires HTL to be ascertained depending upon the size of the islands based upon Integrated Management Study, but the same has not been carried out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically on the basis that Nediyathuruthu island has CRZ landward of HTL upto 100 meters, the contradiction in the stand taken by the Coastal Zone Management Authority would not inure to the benefit of the appellant. Findings of the High court on merits 13. In the common order covering both the islands, essence, the High Court held (i) that both Nediyathuruthu and Vettila Thuruthu islands are backwater islands of Kerala and hence, covered by CRZ Notification of 1991; (ii) that though the requirement for the conduct of a salinity test, for classifying an area as CRZ, was introduced only in the year 2002 by way of an amendment, the authority had asserted to have carried out salinity test on the basis of 5 ppt (parts per thousand); (iii) that the permit issued to the appellant made it mandatory for them to be compliant with the CRZ Notification of 1991 and hence, they cannot attack the CZMP on the ground that salinity test was not done during the driest period as prescribed in the 2002 amendment; (iv) that the words 'small islands' included in CRZ IV in the Notification of 1991, are intended to cover small marine islands in the vicinity of Andaman & Nicobar and Lakshadweep, but are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the fact that the island in question is not a marine island but only a backwater island and (xx) that the failure to obtain a cadastral map cannot be fatal. 14. For coming to the aforesaid conclusions, the High Court solicited the assistance of one Dr. K. V. Thomas, a scientist and who was the head of the Marine Sciences Division in the Centre for Earth Science Studies, Akkulam, Thiruvananthapuram. It appears from the impugned order that the High Court put to Dr. K.V. Thomas, specific questions as to (i) whether HTL can be found only on the sea coast and not in the other parts; (ii) the test carried out for fixing the HTL; and (iii) how Nediyathuruthu was identified as containing a filtration pond. It appears from the impugned order that the learned counsel appearing for the appellants, was also permitted to put questions to Dr. K. V. Thomas. Thereafter, the appellants filed an affidavit of objections, to the statements made by Dr. Thomas. This affidavit of objections merely highlighted the discrepancies and errors in the statement of Dr. Thomas. There was no objection to the very procedure adopted by the High Court in soliciting the opinion of Dr. Thomas. Nor was any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defining and characterising filtration ponds; (iv) that there were fatal errors in the CZMP, which were not rectified even after the Ministry of Environment and Forests pointed out several discrepancies and even after a Committee of Experts chaired by Dr. M. S. Swaminathan found the plan to be replete with errors; (v) that the High Court could not have proceeded on the ipse dixit of a socalled expert by name Dr. K. V. Thomas who was called suo moto and whose statements were taken on record as the gospel truth; (vi) that the Guidelines of the MOEF requiring demarcation of HTL and LTL after physical verification were not followed and microlevel cadastral maps were not drawn by the State of Kerala; (vii) that since the appellant's land is a 5 hectare island falling within the definition of 'small islands' in CRZ IV, an island specific study was mandatory, before deciding the classification, but the same was not done.; (viii) that the categorisation of the island as critically vulnerable coastal area (CVCA), is flawed, as no notification by MOEF as required by CRZ 2011, was ever issued and the mandatory sequence for identifying and notifying CVCA was not followed and (ix) that as many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants' land is about 4.3 kilometers and Vettila Thuruthu island, as seen from Map 32A, is closer to the Arabian Sea than Nediyathuruthu; (v) that the Building Permit issued to the appellant was on 10.10.2007, long before the issue of CRZ 2011; (vi) that the draft KCZMP 2018 and relevant map of KCZMP 2009 make it clear that Vettila Thuruthu is directly influenced by tidal effects and has been shown as intertidal zone, which is absent in Nediyathuruthu; and (vii) that the issue relating to island specific studies/ small island was not dealt with in Vaamika Island and it is a significant distinguishing feature. Preliminary Issue whether the judgment in Vaamika Island is distinguishable 19. In the light of the rival contentions, it is necessary for us to first deal with the preliminary issue, keeping in mind the fact that the judgment in Vaamika island is not under review before us. The correctness of the view expressed therein, has not been doubted and a reference made to us. Therefore, it cannot be our endeavor to undertake a research with magnifying glasses to find out miniscule differences between the 2 sets of cases. Our endeavour can only be to find out, if the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the High court, in paragraph13 above. 22. As we have indicated elsewhere, the decision of this Court in Vaamika Island is sought to be distinguished on the basis of seven identifiable features, some of which, according to the appellants, are covered in the decision in Vaamika Island, only in passing reference. According to Dr. Singhvi, learned senior counsel, the issues relating to salinity, filtration ponds, the opinion of Dr. K. V. Thomas, the lack of cadastral maps and the identification of the lake as CVCA, are all mentioned in paragraphs 23 and 24 of the decision of this Court in Vaamika Island, only in passing. It is his contention that these two paragraphs of the decision of this Court in Vaamika Island, seek to decide these issues summarily without any reasoning and that therefore, this Court is entitled to decide those issues independently in relation to Nediyathuruthu island. Let us now see if this contention is valid. 23. As pointed out by this Court in Kunhayammed v. State of Kerala [(2000) 6 SCC 359], there is a distinction between the dismissal of a special leave petition by a nonspeaking order where no reasons are recorded and the dismissal of a special leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned." 25. The appellants cannot also escape the findings recorded by this Court in other paragraphs, on the common issues. Even according to the appellants, some of those common issues, such as salinity, filtration ponds, cadastral maps, CVCA, etc. are dealt with by this Court in paragraphs 23 and 24 of the reported decision. The contention that these common issues are dealt with in passing, in the judgment of this Court and that therefore, they are entitled to be reagitated, cannot be accepted. 26. If detailed reasons given by the High Court or a subordinate Court, find acceptance by this Court, in specific terms, the question of scrutinising them for finding out whether they were in the passing or in detailed focus, does not arise. Such an exercise would tantamount to reviewing the decision. 27. Each and every particular issue dealt with by the High Court as common to both the islands, was considered by this Court in Vaamika Island and a finding recorded. In particular - i. Map N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 07.03.1995 and 17.07.1996, addressed to all the panchayats, advising them to follow the provisions of CRZ Notification, the NOC and Building Permit obtained, respectively on 02.08.1996 and 10.10.2007, by the appellants were clearly illegal. 30. Both Vettila Thuruthu and Nediyathuruthu islands are admittedly backwater islands nestled in Vembanad lake. In paragraph 27 of the judgment in Vaamika Island, this Court has indicated that Vembanad lake is an ecologically sensitive area and that considering the socioeconomic importance of this water body, it had been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We do not know how this finding can be held to be applicable only to Vettlia Thuruthu island. 31. According to the appellants, CRZ 2011 prescribes a procedure for identifying, planning and implementing CVCA. To begin with, guidelines may have to be framed by MOEF in consultation with the stakeholders. According to the appellants, the process of consultation with the local fishers and other communities and the process of identification and planning of CVCA, the process of preparation of Integrated Management Plan etc. were not even undertaken and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, we cannot say anything on the application of the appellants under the said Notification. In any case, the issue does not arise out of the lis before us. 36. The second alternative prayer made by the appellants without prejudice, is on the basis of the CRZ Notification 2019 issued on 18.01.2019. According to the learned senior counsel for the appellants, the 2019 notification permits construction and operation, so long as it is 20 meters from the HTL. According to the appellants, even if all the constructions put up by them are now demolished, the appellants will be entitled to build once again, approximately 60 per cent of the area covered by the existing superstructures. 37. But the above argument does not carry any weight. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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