Supreme Court of India
KAPICO KERALA RESORTS PVT. LTD.versusSTATE OF KERALA & ORS.
- Citation
- 2020 INSC 30
- Decided
- 10 January 2020
- Disposal
- Dismissed
- Bench
- R F NARIMAN
Holding
The Supreme Court held that the common issues had already been decided in Vaamika Island v. Union of India and the appellants could not escape those findings; the distinctions raised were not substantial, and the appeals were dismissed.
Summary
The Kerala High Court barred the development of resorts on two backwater islands, Vettila Thuruthu (Vaamika) and Nediyathuruthu, in Vembanad Lake, invoking the Kerala Coastal Zone Management Plan and the Coastal Regulation Zone (CRZ) Notifications of 1991 and 2011. The Supreme Court had earlier dismissed special leave petitions in the Vaamika case, upholding the High Court’s order. Kapico Kerala Resorts Pvt. Ltd., the proponent of the Nediyathuruthu project, challenged the High Court’s order, arguing that the facts differed from Vaamika and that its pre‑2011 permits should be valid. The Supreme Court held that the common issues—such as the applicability of CRZ 1991, salinity testing, classification as filtration ponds, and the CVCA status of Vembanad Lake—were already decided in Vaamika Island and could not be re‑agitated. The alleged distinctions were deemed insubstantial, and the appeals were dismissed.
Issues considered
- Whether backwater islands in Kerala are covered by the CRZ Notification of 1991 (and 2011) and thus subject to its restrictions
- Whether the absence of a salinity test as per the 2002 amendment vitiates the classification of the islands
- Whether the islands fall under CRZ IV or CRZ I and the consequent impact on property rights
- Whether the identification of the islands as filtration ponds based on maps is correct
- Whether the designation of Vembanad Lake as a Critically Vulnerable Coastal Area (CVCA) applies to the islands
- Whether an island‑specific study and cadastral maps are mandatory
- Whether permits obtained before the 2011 CRZ Notification are valid
- Whether the 2017 regularisation notification or the 2019 CRZ Notification affect the applicability of the earlier orders
Legislation cited
Subjects
environmental lawcoastal regulation zonebackwater islandsVembanad LakeCRZ NotificationCVCAland conservancyresort developmentspecial leave petitiondoctrine of merger
Judgment
[2020] 1 S.C.R. 909 909
KAPICO KERALA RESORTS PVT. LTD. A
v.
STATE OF KERALA & ORS.
(Civil Appeal Nos. 184-186 of 2020)
JANUARY 10, 2020 B
[ROHINTON FALI NARIMAN, ANIRUDDHA BOSE AND
V. RAMASUBRAMANIAN, JJ.]
Environment – Lake and Backwater Islands – Protection of –
The High Court, in a batch of cases, was concerned about the
C
development of resorts in two backwater islands, by name Vettila
Thuruthu namely, Vaamika and Nediyathuruthu, located in
Vembanad lake – The High Court, first in a batch of writ petitions
and then in a batch of review petitions, prohibited projects
proponents from carrying on the activity of development of resorts
on basis of Kerala Coastal Zone Management Plan and the D
Regulation Zone Notifications – Also, the Supreme Court had
dismissed the two special leave petitions filed by the Vaamika island
arising from the batch of said writ petitions regarding the
construction of the resort in the Vettila Thuruthu island reported as
Vaamika island v. Union of India by a reasoned judgment – Insofar,
E
as Nediyathuruthu island is concerned, the appellant filed four
special leave petitions arising out of disposal of the writ petitions
and a review petition by the High Court – The appellants contended
that the decision of the Supreme Court in Vaamika island was confined
only to the facts relating to Vettila Thuruthu island and that since
Vettila Thuruthu island and Nediyathuruthu island have different F
features, the correctness of the order of the High Court in relation
to Nediyathuruthu island required to be gone independently – Held:
The appellants cannot escape the findings recorded by the Supreme
Court in Vaamika island on the common issues – Even according to
the appellants, some those common issues, such as salinity, filtration
G
ponds, cadastral maps, CVCA, etc. are dealt with by the Supreme
Court in the said reported decision – The contention that these
common issues are dealt with in passing, in the said judgment and
that, therefore, they are entitled to be re-agitated, cannot be accepted
H
909
910 SUPREME COURT REPORTS [2020] 1 S.C.R.
A – If detailed reasons given by the High Court or a Subordinate
Court, find acceptance by the Supreme Court, in specific terms, the
question of scrutinizing 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 – The distinction sought
to be made by the appellants between their case and the case relating
B
to Vettila Thuruthu was 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 categorization
under CRZ-I under the 1991 notification was upheld by the Supreme
Court and this why it was found the constructions made even in
C Vettila Thuruthu as violative of both the notifications, namely 1999
and 2011– Furthermore, in Vaamika island, Vembanad lake has been
indicated as an ecologically sensitive area and that considering
the socio-economic importance of this water body, it was scheduled
under ‘vulnerable wetlands to be protected’ and declared as CVCA
– This finding cannot alone be applicable to Vettila Thuruthu island
D
– Thus, distinctions sought to be made by the appellants not
substantial and consequently, the appeals are dismissed.
Dismissing the appeals, the Court
HELD: 1. The appellants cannot also escape the findings
E recorded by this Court, 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,
Vaamika island v. Union of India. The contention that these
common issues are dealt with in passing, in the judgment of this
F Court and that therefore, they are entitled to be re-agitated,
cannot be accepted. [Para 25][926-B]
2. 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
G they were in the passing or in detailed focus, does not arise. Such
an exercise would tantamount to reviewing the decision. [Para
26][926-C]
3. Each and every particular issue dealt with by the High
Court as common to both the islands, was considered by this
H
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 911
KERALA & ORS.
Court in Vaamika Island and a finding recorded. In particular – A
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. KCZMP was held by
this Court in paragraph 23 of Vaamika to have been prepared
B
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. 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 C
as per notification. 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 IV. In paragraph 24 this Court also endorsed the view
D
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 thousand. [Para 27][926-D-H;
927-A]
4. The first distinction sought to be made by the appellants E
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 F
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). [Para
28][927-B-C]
5. In any case, the appellants herein obtained the NOC on G
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
H
912 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
B
obtained, respectively on 02.08.1996 and 10.10.2007, by the
appellants were clearly illegal. [Para 29][927-C-E]
6. 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
C 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. This finding cannot be held
to be applicable only to Vettlia Thuruthu island. [Para 30][927-F]
D 7. 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
E 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. [Para 31][927-G-
H; 928-A]
F
8. 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
G 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. [Para 32][928-B-C]
H
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 913
KERALA & ORS.
9. Once it is found that the main issues arising in common A
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, this Court holds that the distinctions sought
B
to be made out by the appellants are not substantial and hence,
not inclined to revisit the issues already clinched by this Court.
[Para 33][928-B-C]
Vaamika Island v. Union of India (2013) 8 SCC 760;
S. Jagannath v. UOI (1997) 2 SCC 87 : [1996] 9 Suppl.
SCR 848; Kunhayammed v. State of Kerala (2000) 6 C
SCC 359 : [2000] 1 Suppl. SCR 538; Abbai Maligai
Partnership Firm v. K. Santhakumaran (1998) 7 SCC
386 : [1998] 1 Suppl. SCR 535; Khoday Distilleries
Ltd. v. Sri Mahadeshwara Sahakara (2019) 4 SCC 376
: [2019] 3 SCR 411 – referred to. D
Case Law Reference
(2013) 8 SCC 760 referred to Para 6
[1996] 9 Suppl. SCR 848 referred to Para 13
[2000] 1 Suppl. SCR 538 referred to Para 23 E
[1998] 1 Suppl. SCR 535 referred to Para 23
[2019] 3 SCR 411 referred to Para 23
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 184-
186 of 2020. F
From the Judgment and Order dated 25.07.2013 of the High Court
of Kerala At Ernakulam in Writ Petition Nos. 4808/2012(A), 28485/
2011(I) & 34799/2011(S).
With
G
Civil Appeal No. 187 of 2020.
Dr. Abhishek Manu Singhvi, Sr. Adv., Avishkar Singhvi, Vanshdeep
Dalmia, Nipun Katyal, Ms. Madhavi Khanna, Dhruv Surana, Suchakshu
Jain, Sahasranam, Advs. for the Appellant.
H
914 SUPREME COURT REPORTS [2020] 1 S.C.R.
A Sanjay Jain, ASG, Pallav Sisodia, Sanjay Parikh, Sr. Advs., C. K.
Sasi, Sureshan P., Vishnu Sharma, Utkarsh Singh, Ms. Srishti Agnihotri,
Ms. Sanjana Srikumar, Ritwik Parikh, Rajat Nair, Ms. Swati Ghildiyal,
Vikrant Yadav, Mohd. Akhil, Dr. D.V. Rao, Gurmeet Singh Makker,
G. Prakash, Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,
M. T. George, Vipin Nair, Advs. for the Respondents.
B
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Leave granted.
C 2. Challenging a common order passed by the Kerala High Court,
first in a batch of writ petitions and then in a batch of review petitions,
prohibiting them from carrying on the activity of development of a resort,
in a backwater island namely Nediyathuruthu island in Vembanad lake,
Alappuzha District of the State of Kerala, on the basis of Kerala Coastal
Zone Management Plan (hereinafter ‘KCZMP’) and the Coastal
D 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
E 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
F 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
G
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
H owners’ in the impugned judgment.
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 915
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
5. The effect of the order of the High Court dated 25.07.2013 A
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 B
Conservancy Act, against the project proponent in respect of
Nediyathuruthu island (which is the appellant in these appeals
and which is known as ‘Kapico’) for the removal of
encroachments in Nediyathuruthu island should be proceeded
further in accordance with law.
C
ii. That the Government of India/Authority should ensure that
the encroachments made in the Nediyathuruthu island are
removed within three months.
iii. That the project proponent in respect of Nediyathuruthu island
namely, Kapico and the project proponent in respect of Vettila D
Thuruthu island namely, Vaamika, shall not carry out any further
constructions.
iv. That the Government of India/Authority should take action for
the removal of unauthorised structures put up by the island
owners, namely Vaamika. E
v. That the authorities should take action in regard to the
unnumbered buildings found in the Vettila Thuruthu island.
6. As against the common order passed by the High court on
25.07.2013 in those 7 writ petitions (5 relating to Nediyathuruthu and 2
relating to Vettila Thuruthu), two appeals by special leave were first F
filed by Vaamika Island (Green Lagoon Resort), in respect of the project
in Vettila Thuruthu island. These two special leave petitions in SLP (C)
No. 24390-24391/2013 first came up for hearing on 01.08.2013 and after
hearing the petitioner, this court reserved judgment. Thereafter, by a
reasoned judgment delivered on 08.08.2013, reported as Vaamika Island
G
v. Union of India1, this Court dismissed the special leave petitions,
thereby giving its imprimatur to the impugned judgment of the High Court.
Therefore, 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.
1
(2013) 8 SCC 760 H
916 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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. 34143-34145 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
B
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.
C 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
D
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
E 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 completing
the construction of the resort, (iii) the order passed in the writ petition
filed by a Society, directing the proceedings for the removal of
F encroachments to be continued and (iv) the dismissal of a petition for
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 and also directing
the proceedings for removal of encroachments to be continued.
G Pleadings in the Substantial Writ Petition
9. As stated earlier, the appellants herein were the petitioners in 2
writ petitions before the High court. But the writ petition in which
substantial reliefs were claimed by the appellants before the High court,
was the one in WP (C) No. 4808/2012. Briefly stated, the claim of the
H appellants in WP (C) No. 4808 of 2012 was (i) that CRZ Notification of
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 917
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
1991 does not apply to islands like Nediyathuruthu and that islands which A
dot the backwaters of Kerala were brought within the purview of the
Regulations, for the first time only by the CRZ Notification of 2011; (ii)
that since the appellants obtained NOC on 02.08.1996 and Building Permit
on 10.10.2007 from the Gram Panchayat, CRZ Notification of 2011 cannot
be applied to their case; (iii) that CRZ Notification of 1991 categorises
B
small islands under CRZ IV and there is no prohibition for construction
of buildings, as standards are yet to be evolved; (iv) that the distance
from HTL in respect of small islands is required to be decided based on
case to case study; (v) that the land of the appellant falls under 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 C
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 area-specific management plans, but no such plans
were formulated; (viii) that in the absence of any area-specific criteria
for determination of CRZ, the 1991 Notification is not applicable to
D
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 20-60 meters, the extension of the restriction relating to Category
III will be violative of the right conferred under Article 300A; and (xi) E
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 counter-affidavit filed on behalf F
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; G
(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 when CRZ Notification was
applicable. H
918 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 11. However, in the counter-affidavit filed in WP (C) No. 4808 of
2012, the Kerala Coastal Zone Management Authority took a stand that
the island falls under CRZ I. The distinction between CRZ I and CRZ
III under the 1991 Notification was (i) that areas which are ecologically
sensitive and important, such as national parks/marine parks, sanctuaries,
reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas
B
close to breeding and spawning grounds of fish and other marine life,
areas of outstanding natural beauty/historically/heritage areas, areas rich
in genetic diversity, areas likely to be inundated due to rise in sea level
consequent upon global warming and such other areas as may be declared
by the Central Government or concerned authorities and the areas
C between LTL and HTL fall under CRZ I, while (ii) areas that are relatively
undisturbed and those which do not belong to either Category I or II, but
which include coastal zones in rural areas and also areas within municipal
limits or other legally designated urban areas which are not substantially
built up, fall under CRZ III.
D 12. In so far as the restrictions/regulation of activities in CRZ I/
CRZ III are concerned, the impact on the appellants was just the same,
in the light of the specific stand taken by the Coastal Zone Management
Authority. While no new construction except those indicated in the
Notification are permitted in CRZ I, areas up to 200 meters from the
HTL was to be earmarked as ‘no development zone’ in CRZ III. Since
E the counter-affidavit of the Coastal Zone Management Authority
proceeded specifically 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.
F 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,
G 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
H 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’
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 919
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
included in CRZ IV in the Notification of 1991, are intended to cover A
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
B
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) C
that the specific stand of the authority is that Nediyathuruthu is a low
lying area likely to be inundated due to rise in sea level; (ix) that filtration
ponds, by their very nature, lie adjacent to backwaters and Nediyathuruthu
is an island with filtration ponds; (x) that having regard to the low width,
that is a little over 50 meters which cannot be developed, the entire area
D
has been marked as filtration pond; (xi) that in a writ petition under
Article 226, the High Court cannot interfere with such a classification;
(xii) that under the 1991 Notification, coastal stretches of seas, estuaries,
creeks, rivers and backwaters influenced by tidal action in the landward
side upto 500 meters will fall within coastal regulation zone; (xiii) that
the distance from the HTL was to apply on both sides of the rivers, E
creeks, backwaters; (xiv) that though the distance could be modified, on
a case to case basis for reasons to be recorded, the distance cannot be
modified to less than 100 meters or the width of the water body; (xv)
that by an amendment in 1994, the distance of 100 meters was reduced
to 50 meters, but this Court struck down the same; (xvi) that therefore,
F
the plan prepared by KCZMA in 1995 had to be modified to be in tune
with the judgment; (xvii) that even according to the company, the width
of the island, where the construction exists, is between 20 to 60 meters;
(xviii) that in S. Jagannath v. UoI2, this Court held the filtration ponds
to be an ecologically polluting feature, but the same cannot go to the
rescue of the appellants, when the island is a backwater island falling G
under CRZ I; (xix) that there was no requirement for an island specific
study, 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.
2
(1997) 2 SCC 87 H
920 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
B
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
C 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.
D 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
E 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 measurement was done and a report
submitted. As per the report, there was an encroachment, which led to a
F notice being issued under Section 11 of the Kerala Land Conservancy
Act, 1957. After the report was filed, the appellants filed an interlocutory
application in IA No. 16744 of 2012 seeking clarification. The High Court
then left it open to the appellants to impugn the correctness of the report
of the survey, before a competent forum. In other words, without sealing
G the fate of the appellants on the issue of encroachments, solely on the
basis of the report of the survey conducted under the supervision of the
court, the High Court gave a lease of life to the appellants to agitate the
same in a separate proceeding. Keeping these findings of the High Court
in mind, let us now see the grounds of attack to the impugned order.
H
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 921
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
Rival Contentions A
16. Assailing the impugned order of the High Court, it is contended
by Dr. A. M. Singhvi, learned Senior counsel (i) that without conducting
a salinity test under the CRZ Notification of 1991 at any point of time, a
finding was arrived at as though the salinity of the land was 5 ppt and
that therefore, the land constituted backwaters directly influenced by B
the tidal effect of the sea; (ii) that the finding about the existence of
filtration ponds on the appellant’s land, which is an inherent feature of
CRZ I, is flawed in as much as most of the maps depict the area as
having coconut plantations, which cannot co-exist along with a filtration
pond; (iii) that no State other than the State of Kerala included filtration
ponds as a feature of CRZ, though a scientific Sub-Committee of the C
KCZMA itself found no scientific basis for 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 D
errors; (v) that the High Court could not have proceeded on the ipse
dixit of a so-called 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 micro-
level cadastral maps were not drawn by the State of Kerala; (vii) that E
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 F
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.
G
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
H
922 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
contended by them that the appellants cannot now blow hot and cold,
after having agreed to take refuge under a notification dated 14.03.2017
issued by the MOEF ( which is in the nature of a scheme for regularization)
and after having moved an application under the said notification. They
B
contended that in any case, the order of the High Court was justified on
merits and that there is no reason for this Court to take a different view
from the one taken in Vaamika island (supra).
18. However, Dr. A. M. Singhvi, learned senior Counsel for the
appellants, contended that the decision of this Court in Vaamika Island
C was confined only to the facts relating to Vettila Thuruthu island and that
since Vettila Thuruthu island and Nediyathuruthu island (to which the
present appeals relate) had different features, the correctness of the
order of the High Court in relation to Nediyathuruthu island required to
be gone into independently. The distinguishable features, according to
D him are: (i) that Vettila Thuruthu was obviously covered by CRZ 2011
Notification, as the Building Permit for the appellant therein (Vaamika)
was granted on 30.04.2012; (ii) that though the contentions relating to
salinity, filtration ponds, the opinion of Dr. K. V. Thomas, the lack of
cadastral maps and the identification of the area as CVCA are dealt
with in the judgment of this Court in Vaamika Island, in passing, in two
E paragraphs, the substantive factual issues are not covered; (iii) that the
finding of existence of mangroves in Vettila Thuruthu island and the
absence of such a finding in relation to Nediyathuruthu, is a significant
distinction; (iv) that the distance through backwaters from Vettila
Thuruthu to the appellants’ land is about 4.3 kilometers and Vettila
F 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 inter-tidal zone, which is absent in Nediyathuruthu; and (vii)
G 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
H
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 923
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
19. In the light of the rival contentions, it is necessary for us to A
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
B
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 C
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 D
dealing with issues peculiar to each of them. The High Court took up for
consideration, from paragraph 31 onwards of its judgment, common issues
arising in respect of both the islands. After dealing with and answering
the common issues, from paragraph 31 upto paragraph 85, the High
Court independently dealt with (i) the issue of encroachments allegedly E
made by the appellant in paragraph 86 and (ii) the issue relating to some
specific reliefs sought by the local fishermen and a trade union in two
separate writ petitions against the appellant in paragraphs 87 to 89.
Thereafter, the High Court dealt with other issues.
21. In brief, the common issues formulated by the High Court in F
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? G
(b) Whether the islands would fall under CRZ IV and what are
its effect on the property rights and the doctrine of legitimate
expectation?
H
924 SUPREME COURT REPORTS [2020] 1 S.C.R.
A (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
B (supra)?
(e) Whether there is any reliable material to classify the areas
as filtration ponds?
(f) Whether there must be island specific study?
C (g) Whether cadastral map is a must and its absence fatal?
The 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
above.
D 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
E
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,
F 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
Kerala3, there is a distinction between the dismissal of a special leave
petition by a non-speaking order where no reasons are recorded and the
G 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
3
H (2000) 6 SCC 359
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 925
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
Court (before the grant of leave) happen to be findings recorded by the A
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 certain other decisions [Abbai Maligai Partnership Firm
v. K. Santhakumaran4], and the issue was referred to a larger bench
B
for an authoritative pronouncement, this Court has now clarified in
Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara5, that
Kunhayammed lays down the correct law.
24. 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, C
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 D
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 E
intervention and, as already indicated, recognising the socio-
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 perspective. F
28. 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 G
Court has held that such notifications have been issued in
the interest of protecting environment and ecology in the
4
(1998) 7 SCC 386
5
(2019) 4 SCC 376 H
926 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
B 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 accepted.
26. If detailed reasons given by the High Court or a subordinate
C 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
D 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
E 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
F of the Government of Kerala.
iii. 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
notification.
G iv. 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 IV.
v. In paragraph 24 this Court also endorsed the view of the High
H Court that even before the salinity test was incorporated in the
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 927
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
year 2002, reliance was placed on that test, on the basis of 5 A
ppt which was made as per standard measurements in parts
per thousand.
28. The 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 B
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).
C
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 D
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, E
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 F
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 island.
G
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
H
928 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
B 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
C 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
D 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
E
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
F 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
G 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
H
KAPICO KERALA RESORTS PVT. LTD. v. STATE OF 929
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
EIA Notification, 2006, but carried out without obtaining such clearance, A
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,
B
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 C
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 D
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 E
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 F
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 G
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) H
930 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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.
B
(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
C 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
D 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
E 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.
F 40. Hence, in the light of our finding (i) that the substantial issues
that arose in common for both the islands have already been answered
in Vaamika Island (supra), and (ii) that the distinguishing features sought
to be projected, are not so material as to take a different view than the
one taken therein, the appeals are liable to be dismissed. Accordingly, all
the appeals are dismissed. There shall be no order as to costs.
G
Ankit Gyan Appeals dismissed.
H
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