TMI Blog2020 (1) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 the island in the Coastal Zone Management Plan prepared in pursuance of the CRZ Notification of 1991. Similarly, out of the 2 writ petitions which related to Vettila Thuruthu island, one was by the Society opposing the development and the other was by the proponent of the project, by name Vaamika Island (Green Lagoon Resort), referred to as the island owners in the impugned judgment. 5. The effect of the order of the High Court dated 25.07.2013 was (i) to reject the writ petitions filed by the project proponents in respect of both the islands and (ii) to allow the writ petitions filed either by the local fishermen or by the trade union or by the Society, with the following directions: i. That the action initiated by the authorities under the Land Conservancy Act, against the project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, (which arose out of WP (C) No. 19564 of 2011) the appellants came up in April 2014, with a separate special leave petition in SLP (C) No. 21927 of 2014. The same got tagged along with the first 3 special leave petitions arising out of the original order dated 25.07.2013. 8. Thus we have on hand, four appeals, filed by the proponents of the project for the construction of a resort in Nediyathuruthu island. These appeals arise respectively out of (i) the dismissal of a writ petition filed by the project proponent challenging the inclusion of Nediyathuruthu island within CRZ and seeking a declaration that the CRZ Notification of 1991 is not applicable to the island, (ii) the dismissal of the writ petition filed by the project proponent seeking police protection for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants 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. 10. It appears that in the earliest counteraffidavit filed on behalf of the Kerala Coastal Zone Management Authority to the writ petition (WP No. 19564 of 2011) filed by the local traditional fishermen, they took a stand (i) that Vembanad lake falls under CRZ IV; (ii) that Nediyathuruthu island falls under CRZ III; (iii) that Nediyathuruthu island has CRZ landward of HTL upto 100 meters; (iv) that the construction of a resort required clearance under CRZ Notifications of 1991 and 2011; (v) that Vembanad kayal (lake) is declared as critically vulnerable coastal area, (vi) that though Panavally gram panchayat does not have sea front, it has water bodies with tidal influence and (vii) that the Panchayat was not competent to issue Building Permit whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); (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 not intended to cover backwater islands which are influenced by the tidal effect contemplated in the Notification; (v) that backwater islands which have mangroves and areas close to breeding and spawning of fish and other marine life will fall under CRZ I; (vi) that CRZ Notification of 1991 clearly takes within its sweep, the coastal stretches of the backwater islands, along with the coastal stretches of the sea; (vii) that in view of the development of environmental jurisprudence and the law governing the field, the restriction and regulation of the right to property through procedure established by law, cannot be taken to be a negation of the right guaranteed under Article 300A; (viii) that the specific stand of the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 objection made to his statements as being biased. Findings of the High Court on encroachments 15. Apart from soliciting an expert opinion on the technical issues raised in the writ petitions, the High Court also got a survey carried out by the Deputy Surveyor of Alappuzha in the presence of the District Collector, so as to find out (i) the extent of the property in the possession of the appellants and (ii) the exact extent of the island. This was done by the High Court in the light of a specific allegation made by the local fishermen and the Society that the appellants were also guilty of encroachments. Pursuant to the order passed by the High Court to that effect on 22.11.2012, a survey and measurem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 as twelve permissions/ approvals obtained by the appellant from various authorities and the completion of 75% of the construction of the resort, were not given due weightage by the High court. 17. Mr. Sanjay Parikh, learned senior counsel appearing for the private parties and Mr. Pallav Shishodia, learned senior counsel appearing for the State of Kerala and KCZMA raised a preliminary objection to a detailed deliberation on the merits of the case. This was on the ground that the common order impugned in these appeals has already attained finality with the dismissal of the special leave petitions through a reasoned judgment of this Court in relation to Vettila Thuruthu island. It is also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 major issues raised in both cases were substantially the same. If the answer is yes, the appeals are liable to be thrown out. If no, the arguments on merits have to be considered independent of the decision in Vaamika. Therefore, let us now see what were the issues considered by the High court as having arisen in these cases and how the High court answered them. The issues dealt with by the High court 20. The High Court, in the impugned judgment, compartmentalised the issues arising for consideration into 2 parts, the first dealing with issues in common for Vettila Thuruthu and Nediyathuruthu and the next dealing with issues peculiar to each of them. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 leave petition by a speaking or reasoned order. In both cases, the doctrine of merger would not apply. But in cases falling under the latter category, the reasons stated by the Court would attract the applicability of Article 141 of the Constitution, if a point of law has been declared therein. If what is stated in the order of the Supreme Court (before the grant of leave) happen to be findings recorded by the Supreme Court, not amounting to a declaration of law, the findings so recorded would bind only the parties thereto. Though the views expressed in Kunhayammed were thought of to be in conflict with the views expressed in cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Number 32A of CZMP as well as the techniques employed to ascertain whether the constructions were made in violation of CRZ 1991 as well as 2011, were found by this Court in paragraph 25, not to be suffering from any illegality. ii. KCZMP was held by this Court in paragraph 23 of Vaamika to have been prepared based on the guidelines of MOEF, taking care of the maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey department of the Government of Kerala. iii. It was also pointed out in paragraph 23 that the area between LTL and HTL is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 hence, Vembanad lake though listed in paragraph 8(V)(4)(b) of CRZ 2011 Notification as CVCA, cannot be taken to be a notified CVCA. 32. But the above contentions are already dealt with by the High Court in paragraph 120122 of its judgment. In paragraph 121 of its judgment, the High Court recorded a specific finding that when the whole of Vembanad lake is included as a CVCA, subject to a process, the Court has to take a view which serves the object of the area being treated as ecologically sensitive and hence a CVCA. It is with particular reference to this findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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