Case: KAPICO KERALA RESORTS PVT.LTD Vs. STATE OF KERALA

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 finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA. 33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court. Alternative Submissions 34. Dr. A. M. Singhvi, learned senior counsel for the appellants, made two alternative submissions without prejudice. The first is that by a notification dated 14.03.2017, a window of opportunity akin to regularisation has been provided to those who made developments without complying with statutory requirements. According to him, the appellants availed this opportunity and the Terms of Reference were granted on 05.04.2018. KCZMA also considered the application of the Petitioner in its meeting held on 07.07.2018 and took a decision to inform the MOEF of the complete details of the case. Therefore, it was contended by the learned senior counsel that the appellants should be allowed at least the benefit of the said notification. 35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification 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 one-time 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 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. 38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk. 39. Therefore, for the appellants, the situation has gone from bad to worse. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Vaamika21. In brief, the common issues formulated by the High Court in respect of both the islands are(a) Whether the islands in the backwaters of Kerala are covered under the CRZ Notification of 1991 and whether the failure to conduct salinity test as required by the amendment made in 2002, vitiated the stand of the KCZMA?(b) Whether the islands would fall under CRZ IV and what are its effect on the property rights and the doctrine of legitimate expectation?(c) Whether the identification of the island as a filtration pond, on the basis of maps drawn to the scale of 1:12,500 using satellite images without any field check, is correct?(d) Whether filtration ponds are an anathema in the light of the decision of this Court in S. Jagannath v. Union of India (supra)?(e) Whether there is any reliable material to classify the areas as filtration ponds?(f) Whether there must be island specific study?(g) Whether cadastral map is a must and its absence fatal?findings on all these issues went against the appellants as well as the proponent of the project in Vettila Thuruthu island. We have recorded the gist of those findings of the High court, in paragraph¬13 above22. 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 reference24. It is no doubt true that the decision in Vaamika Island was rendered at the stage of special leave petitions. Obviously this Court refused leave, but went on to affirm the findings of the High Court, recording detailed reasons therefor. The opinion expressed in paragraphs 27 and 28 of Vaamika Island, does not give any room for escape even for the appellants before us. Paragraphs 27 and 28 of the decision in Vaamika Island read as follows:27. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising thesocio-economic importance of this waterbody, it has recently been scheduled under vulnerable wetlands to be protected and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the abovementioned perspective28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ Notifications are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa [(2004) 3 SCC 445]   , wherein this Court has held that 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 condoned25. 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 re-agitated, cannot be accepted26. 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 decision27. 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 particulari. 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 illegalityii. 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 Keralaiii. It was also pointed out in paragraph 23 that the area between LTL and HTL is also CRZ I and filtration ponds are shallow water bodies and hence they fall under CRZ I as per notificationiv. In paragraph 24, this Court specifically concurred with the view of the High Court that islands could be coastal stretches of rivers or backwaters or backwater islands and that they are clearly covered by CRZ I and not under CRZ III or CRZ IVv. In paragraph 24 this Court also endorsed the view of the High Court that even before the salinity test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt which was made as per standard measurements in parts per thousandThe first distinction sought to be made by the appellants between their case and the case relating to Vettila Thuruthu is that the Building Permit issued to Vaamika was post 2011 Notification. But this distinction will not go to the rescue of the appellants, in view of the fact that the categorisation under CRZ I under the 1991 Notification was upheld by this Court and this is why this Court found the constructions made even in Vettila Thuruthu as violative of both the notifications, namely 1991 and 2011 Notifications (paragraph 24 of Vaamika Island)29. In any case, the appellants herein obtained the NOC on 02.08.1996 and the Building Permit on 10.10.2007. In paragraph 26 of its decision in Vaamika Island, this Court recorded the fact that the Director of Panchayats vide letters dated 07.03.1995 and 17.07.1996 had directed all panchayats to strictly follow the provisions of CRZ Notification and that it was found to have been violated while granting permission. This finding hits at the very root of the contention that the appellants permit will not be affected, as it was pre¬2011 Notification. In the teeth of the letters of the Director of Panchayats dated 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 illegal32. But the above contentions are already dealt with by the High Court in paragraph 120-122 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 finding that this Court held in paragraph 27 of Vaamika Island that the whole of Vembanad lake is to be seen as CVCA33. Once we find that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, we hold that the distinctions sought to be made out by the appellants are not substantial and hence, we are not inclined to revisit the issues already clinched by this Court35. We have perused the Notification dated 14.03.2017. The primary object of the said Notification 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 one-time 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 uslearned 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 superstructures37. 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 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 safeguards38. Therefore, it is not as though the reduction of the distance parameter to 20 meters from the HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad lake in the category of CVCA in paragraph 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, in so far as CVCAs are concerned. This can be summarized as follows: (i) In paragraph 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but paragraph 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Paragraph 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated Management Plans were also required to be prepared for CVCAs under paragraph 8(V)(4)(d) of the 2011 Notification. (ii) But under paragraph 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Paragraph 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad lake. While the words contained in paragraph 8(V)(4)(b) of the 2011 Notification are: …shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area…, the words contained in paragraph 3.1 of the 2019 Notification are …shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk39. Therefore, for the appellants, the situation has gone from bad to worse. 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 them30. 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 socio-economic 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