Case: M/s. Vaamika Island (Green Lagoon Resort) Vs. Union of India &amp; Others

1. Vembanad Backwater is a Critically Vulnerable Coastal Area (for short "CVCA"), which supports exceptionally large biological diversity and constitutes the second largest wetlands in India. There are several islands in and around Vembanad Backwaters of which Vettilla Thuruthu is one amongst them.2. SLPpetitioner preferred a Writ Petition (Civil) No. 2947 of 2013 before the High Court of Kerala seeking a declaration that few items of its properties, described therein, approximately 5.21 acres were wrongly included in Map No. 32A of the Coastal Zone Management Plan (for short "CZMP") prepared by the Kerala Coastal Zone Management Authority (for short "KCZMA") and hence ultra vires the Coastal Regulation Zone (CRZ) Notification, 1991 (for short "Notification 1991") and CRZ Notification, 2011 (for short "Notification 2011"). Petitioner has also sought for a declaration that classification of its properties situated in Vettilla Thuruthu Island as Filtration Pond (for short "FP") and the consequent categorization of the same underis unconstitutional, being ultra vires CRZ 1991 as well as CRZ 2011. The KCZMA took up the stand that CZMP for the State of Kerala was prepared based on the guidelines issued by the Ministry of Environment and Forests (for short "MoEF"), Government of India. CZMP (1995) of the State indicates the entire Vettilla Thuruthu as FP (fig. 1 : Map No. 32A of the CZMP). Notification 1991, therefore, shows the entire Vettilla Thuruthu asand as per CRZ 2011, it is eitherV. Notification 2011 has defined Vembanad backwater as CVCA.3. MoEF also filed a statement before the High Court, wherein it was stated that the CZMP for Kerala was prepared by the MoEF on 27.9.1996 and that the construction of beach resorts within CRZ area requires prior clearance from MoEF, based on the recommendation of the KCZMA. Further, it was also pointed out, that Category Iincludes the area that are ecologically sensitive and important and that the Government of India, in exercise of the powers conferred under(1) and (3) of Section 3 of the Environmental (Protection) Act, 1986, has notified the KCZMA as the authority for the implementation of the provisions of both Notification 1991 as well as 2011 Notification.4. We notice that another Writ Petition No. 8299 of 2012 was preferred by the 8th respondent herein seeking a Writ of Certiorari to quash the building permit dated 30.4.2012 issued to respondents 7 and 8 therein by the Panavalli Grama Panchayath. Direction was also sought for to direct the District Collector, Alappuzha to measure and demarcate the Kayal area stated to have been encroached by respondents 7 and 8 at Vettilla Thuruthu and to declare that all such encroachment as illegal Vonstruction and liable to be demolished and removed and to restore the area in its original position and for other consequential reliefs.5. The Division Bench of the High Court heard the above mentioned writ petitions, along with few other writ petitions, and rendered the impugned judgment, against which these SLPs have been filed.

Reasoning:
16. The Central Government, following the directions given by this Court as well as in exercise of its powers conferred by(1) and (3) of Section 3 of the Act, constituted KCZMA vide its notification dated 21.7.2008 which was published in the Gazette of India :Extraordinary Part II. The Authority has been entrusted with the power to examine the proposals for changes or modification in classification of CRZ areas and in CRZMP received from the State Government and to make specific recommendations to the National Coastal Zone Management Authority. It has also the power to deal with environmental issues relating to CRZ which may be referred to it by the State Government, the National Coastal Zone Management Authority or the Central Government. The Authority is also entrusted with the power to identify ecologically sensitive areas in the CRZ and to formulatemanagement plans for such identified areas. The Authority is also empowered to identify coastal areas highly vulnerable to erosion or degradation and formulatemanagement plans for such identified areas. The authority is further obliged to submit the plans prepared by it to the National Coastal Zone Management Authority for examination and its approval. Various other powers have also been entrusted to KCZMA by the above mentioned notification.17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No. 32A of CZMP). CZMP described FP as : another fish spawning/breeding ground and these are shallow water bodies adjoining the backwater system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated assince this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described asas per Notification 1991 and, as per Notification 2011, it is described as eitherV. New constructions are not permitted inthe No Development Zone ofIV. Repairs of existing structures can be permitted in No Development Zone ofsubject to conditions for permissible activities as per the notification. Tourism activity is also not permitted inthe No Development Zone ofKCZMP was prepared, as already indicated, 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 Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is alsoCRZ 2011 has been made applicable with effect from 06.01.2011. CZMP is being prepared on CRZ 2011, at that time the plan prepared on the basis of 1991 Notification would be in force. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as FP. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered byIt cannot fall under either onV. We also fully endorse 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 technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case.21. We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ 1991 as well as 2011.22. The Petitioner had effected the construction in violation of the provisions of Notifications 1991 and 2011 as well as Map 32A, so found by the High Court. Factual details of the same and where actually the portion of some of the properties of the petitioner in the Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paragraphs 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the notification issued in 1991 are concerned, they are clearly in violation of this notification, hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7.3.1995, 17.7.1996 directed all the Panchayats to strictly follow the provisions of CRZ Notification which it was found, not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of Notification 2011 and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notification and the report of the Expert Committee constituted by the Kerala State Committee on Sciences Technology and Environment (KSCSTE) was accepted.23. 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 the Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. The Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognizing theimportance of this water body, 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 above mentioned perspective.24. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of CRZ Notifications 1991 and 2011 are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa and Others (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 condoned.