KAPICO KERALA RESORTS PVT. LTD. versus STATE OF KERALA & ORS. on 10 January 2020

[2020] 1 S.C.R. 909

KAPICO KERALA RESORTS PVT. LTD.

v.

STATE OF KERALA & ORS.

(Civil Appeal Nos. 184-186 of 2020)

JANUARY 10, 2020

[ROHINTON FALI NARIMAN, ANIRUDDHA BOSE ANDV. RAMASUBRAMANIAN, JJ.]

Environment – Lake and Backwater Islands – Protection of –The High Court, in a batch of cases, was concerned about thedevelopment of resorts in two backwater islands, by name VettilaThuruthu namely, Vaamika and Nediyathuruthu, located inVembanad lake – The High Court, first in a batch of writ petitionsand then in a batch of review petitions, prohibited projectsproponents from carrying on the activity of development of resortson basis of Kerala Coastal Zone Management Plan and theRegulation Zone Notifications – Also, the Supreme Court haddismissed the two special leave petitions filed by the Vaamika islandarising from the batch of said writ petitions regarding theconstruction of the resort in the Vettila Thuruthu island reported asVaamika island v. Union of India by a reasoned judgment – Insofar,as Nediyathuruthu island is concerned, the appellant filed fourspecial leave petitions arising out of disposal of the writ petitionsand a review petition by the High Court – The appellants contendedthat the decision of the Supreme Court in Vaamika island was confinedonly to the facts relating to Vettila Thuruthu island and that sinceVettila Thuruthu island and Nediyathuruthu island have differentfeatures, the correctness of the order of the High Court in relationto Nediyathuruthu island required to be gone independently – Held:The appellants cannot escape the findings recorded by the SupremeCourt in Vaamika island on the common issues – Even according tothe appellants, some those common issues, such as salinity, filtrationponds, cadastral maps, CVCA, etc. are dealt with by the SupremeCourt in the said reported decision – The contention that thesecommon issues are dealt with in passing, in the said judgment andthat, therefore, they are entitled to be re-agitated, cannot be accepted

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A– If detailed reasons given by the High Court or a SubordinateCourt, find acceptance by the Supreme Court, in specific terms, thequestion of scrutinizing them for finding out whether they were inthe passing or in detailed focus, does not arise – Such an exercisewould tantamount to reviewing the decision – The distinction soughtto be made by the appellants between their case and the case relatingBto Vettila Thuruthu was that the building permit issued to Vaamikawas post 2011 notification – But this distinction will not go to therescue of the appellants, in view of the fact that the categorizationunder CRZ-I under the 1991 notification was upheld by the Supreme Court and this why it was found the constructions made even inCVettila Thuruthu as violative of both the notifications, namely 1999and 2011– Furthermore, in Vaamika island, Vembanad lake has beenindicated as an ecologically sensitive area and that consideringthe socio-economic importance of this water body, it was scheduledunder ‘vulnerable wetlands to be protected’ and declared as CVCA– This finding cannot alone be applicable to Vettila Thuruthu islandD– Thus, distinctions sought to be made by the appellants notsubstantial and consequently, the appeals are dismissed.

Dismissing the appeals, the Court

HELD: 1. The appellants cannot also escape the findingsErecorded by this Court, on the common issues. Even accordingto the appellants, some of those common issues, such as salinity,filtration ponds, cadastral maps, CVCA, etc. are dealt with bythis Court in paragraphs 23 and 24 of the reported decision,Vaamika island v. Union of India. The contention that thesecommon issues are dealt with in passing, in the judgment of thisFCourt 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 asubordinate Court, find acceptance by this Court, in specificterms, the question of scrutinising them for finding out whetherGthey were in the passing or in detailed focus, does not arise. Suchan exercise would tantamount to reviewing the decision. [Para26][926-C]

3. Each and every particular issue dealt with by the HighCourt as common to both the islands, was considered by thisH

Court in Vaamika Island and a finding recorded. In particular –Map Number 32A of CZMP as well as the techniques employedto ascertain whether the constructions were made in violation ofCRZ 1991 as well as 2011, were found by this Court in paragraph25, not to be suffering from any illegality. KCZMP was held bythis Court in paragraph 23 of Vaamika to have been preparedbased on the guidelines of MOEF, taking care of the mapsprepared by the Survey of India (Government of India) andcadastral maps prepared by the Survey department of theGovernment of Kerala. It was also pointed out in paragraph 23that the area between LTL and HTL is also CRZ I and filtrationponds are shallow water bodies and hence they fall under CRZ Ias per notification. In paragraph 24, this Court specificallyconcurred with the view of the High Court that islands could becoastal stretches of rivers or backwaters or backwater islandsand that they are clearly covered by CRZ I and not under CRZIII or CRZ IV. In paragraph 24 this Court also endorsed the viewof the High Court that even before the salinity test wasincorporated in the year 2002, reliance was placed on that test,on the basis of 5 ppt which was made as per standardmeasurements in parts per thousand. [Para 27][926-D-H;927-A]

4. The first distinction sought to be made by the appellantsbetween their case and the case relating to Vettila Thuruthu isthat the Building Permit issued to Vaamika was post 2011Notification. But this distinction will not go to the rescue of theappellants, in view of the fact that the categorisation under CRZI under the 1991 Notification was upheld by this Court and this iswhy this Court found the constructions made even in VettilaThuruthu as violative of both the notifications, namely 1991 and2011 Notifications (paragraph 24 of Vaamika Island). [Para28][927-B-C]

5. In any case, the appellants herein obtained the NOC on02.08.1996 and the Building Permit on 10.10.2007. In paragraph26 of its decision in Vaamika Island, this Court recorded the factthat the Director of Panchayats vide letters dated 07.03.1995 and17.07.1996 had directed all panchayats to strictly follow theprovisions of CRZ Notification and that it was found to have been AB

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Aviolated while granting permission. This finding hits at the veryroot of the contention that the appellants’ permit will not beaffected, as it was pre-2011 Notification. In the teeth of the lettersof the Director of Panchayats dated 07.03.1995 and 17.07.1996,addressed to all the panchayats, advising them to follow theprovisions of CRZ Notification, the NOC and Building PermitBobtained, respectively on 02.08.1996 and 10.10.2007, by theappellants were clearly illegal. [Para 29][927-C-E]

6. Both Vettila Thuruthu and Nediyathuruthu islands areadmittedly backwater islands nestled in Vembanad lake. Inparagraph 27 of the judgment in Vaamika Island, this Court hasCindicated that Vembanad lake is an ecologically sensitive areaand that considering the socio-economic importance of this waterbody, it had been scheduled under “vulnerable wetlands to beprotected” and declared as CVCA. This finding cannot be heldto be applicable only to Vettlia Thuruthu island. [Para 30][927-F]

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7. According to the appellants, CRZ 2011 prescribes aprocedure for identifying, planning and implementing CVCA. Tobegin with, guidelines may have to be framed by MOEF inconsultation with the stakeholders. According to the appellants,the process of consultation with the local fishers and otherEcommunities and the process of identification and planning ofCVCA, the process of preparation of Integrated ManagementPlan etc. were not even undertaken and hence, Vembanad lakethough listed in paragraph 8(V)(4)(b) of CRZ 2011 Notification asCVCA, 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 theHigh Court in paragraph 120-122 of its judgment. In paragraph121 of its judgment, the High Court recorded a specific findingthat when the whole of Vembanad lake is included as a CVCA,subject to a process, the Court has to take a view which servesGthe object of the area being treated as ecologically sensitive andhence a CVCA. It is with particular reference to this finding thatthis Court held in paragraph 27 of Vaamika Island that the wholeof Vembanad lake is to be seen as CVCA. [Para 32][928-B-C]

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9. Once it is found that the main issues arising in commonfor both the islands and dealt with in common by the High Court,had received a seal of approval from this Court by a reasonedorder, there is no scope for revisiting the same on the basis ofcertain minor ancillary issues not specifically dealt with, in thejudgment. Therefore, this Court holds that the distinctions soughtto 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) 6SCC 359 : [2000] 1 Suppl. SCR 538; Abbai MaligaiPartnership Firm v. K. Santhakumaran (1998) 7 SCC386 : [1998] 1 Suppl. SCR 535; Khoday DistilleriesLtd. v. Sri Mahadeshwara Sahakara (2019) 4 SCC 376: [2019] 3 SCR 411 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 184-186 of 2020.

From the Judgment and Order dated 25.07.2013 of the High Courtof Kerala At Ernakulam in Writ Petition Nos. 4808/2012(A), 28485/2011(I) & 34799/2011(S).

With

Civil Appeal No. 187 of 2020.

Dr. Abhishek Manu Singhvi, Sr. Adv., Avishkar Singhvi, VanshdeepDalmia, Nipun Katyal, Ms. Madhavi Khanna, Dhruv Surana, SuchakshuJain, Sahasranam, Advs. for the Appellant.

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ASanjay 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.C2. 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 CoastalZone Management Plan (hereinafter ‘KCZMP’) and the CoastalDRegulation Zone Notifications, the project proponent has come up withthe above appeals.

3. The High Court was concerned, in the batch of cases, aboutthe development of resorts in two backwater islands, by name VettilaThuruthu and Nediyathuruthu, located in Vembanad lake, PanavallyEPanchayat, in Alappuzha district of the State of Kerala.

4. By a common order passed on 25.07.2013, the High Courtdisposed of seven writ petitions, five of which related to Nediyathuruthuisland and the other two related to the Vettila Thuruthu island. Out of the5 writ petitions which related to Nediyathuruthu island, 3 were by (i) aFgroup of traditional fishermen (ii) a public welfare Society and (iii) atrade union of fishermen and workers, all opposing the construction ofthe resort in the island. The other 2 writ petitions were by the proponentof the project, by name Kapico Kerala Resorts Private limited, referredto in the impugned judgment as ‘the company’, seeking police protectionfor the completion of construction and also challenging the inclusion ofGthe island in the Coastal Zone Management Plan prepared in pursuanceof the CRZ Notification of 1991. Similarly, out of the 2 writ petitionswhich related to Vettila Thuruthu island, one was by the Society opposingthe development and the other was by the proponent of the project, byname Vaamika Island (Green Lagoon Resort), referred to as ‘the islandHowners’ in the impugned judgment.

KAPICO KERALA RESORTS PVT. LTD. v. STATE OFKERALA & ORS. [V. RAMASUBRAMANIAN, J.]

5. The effect of the order of the High Court dated 25.07.2013was (i) to reject the writ petitions filed by the project proponents inrespect of both the islands and (ii) to allow the writ petitions filed eitherby the local fishermen or by the trade union or by the Society, with thefollowing directions:

i.That the action initiated by the authorities under the LandConservancy Act, against the project proponent in respect ofNediyathuruthu island (which is the appellant in these appealsand which is known as ‘Kapico’) for the removal ofencroachments in Nediyathuruthu island should be proceededfurther in accordance with law.

ii. That the Government of India/Authority should ensure thatthe encroachments made in the Nediyathuruthu island areremoved within three months.

iii. That the project proponent in respect of Nediyathuruthu islandnamely, Kapico and the project proponent in respect of VettilaThuruthu island namely, Vaamika, shall not carry out any furtherconstructions.

iv. That the Government of India/Authority should take action forthe removal of unauthorised structures put up by the islandowners, namely Vaamika.

v. That the authorities should take action in regard to theunnumbered buildings found in the Vettila Thuruthu island.

6. As against the common order passed by the High court on25.07.2013 in those 7 writ petitions (5 relating to Nediyathuruthu and 2relating to Vettila Thuruthu), two appeals by special leave were firstfiled by Vaamika Island (Green Lagoon Resort), in respect of the projectin 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 afterhearing the petitioner, this court reserved judgment. Thereafter, by areasoned judgment delivered on 08.08.2013, reported as Vaamika Islandv. Union of India[1], 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 inVettila Thuruthu attained finality and the project got buried deep underthe sea bed without any necessity for any further clearance from anyone.1 (2013) 8 SCC 760

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A7. However, in so far as Nediyathuruthu island is concerned, theappellant in these appeals filed, in the first instance, three special leavepetitions, SLP (C) Nos. 34143-34145 of 2013, on 07.08.2013 (afterjudgment was reserved in the special leave petitions in relation to VettilaThuruthu island). Apart from filing three special leave petitions, theappellants herein also moved the High Court of Kerala by way of 6Bpetitions of review (5 by the company and 1 by its Director) in ReviewPetition Nos. 776 to 780 and 843 of 2013. These petitions for reviewwere filed in October 2013. But by the time the petitions for reviewcame up for hearing, the common judgment of the High Court had alreadybeen confirmed by this Court in Vaamika Island (supra) on 08.08.2013.CTherefore, applying the doctrine of merger, the High Court dismissedthe review petitions by its order dated 10.12.2013. Challenging thedismissal of only one of those 6 review petitions, namely RP No. 776 of2013, (which arose out of WP (C) No. 19564 of 2011) the appellantscame 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 specialDleave petitions arising out of the original order dated 25.07.2013.

8. Thus we have on hand, four appeals, filed by the proponents ofthe project for the construction of a resort in Nediyathuruthu island.These appeals arise respectively out of (i) the dismissal of a writ petitionfiled by the project proponent challenging the inclusion of NediyathuruthuEisland within CRZ and seeking a declaration that the CRZ Notificationof 1991 is not applicable to the island, (ii) the dismissal of the writ petitionfiled by the project proponent seeking police protection for completingthe construction of the resort, (iii) the order passed in the writ petitionfiled by a Society, directing the proceedings for the removal ofFencroachments to be continued and (iv) the dismissal of a petition forreview of an order passed in a writ petition filed by the local fishermenclaiming rights over the stake nets in the island, directing the demolitionof the constructions put up by the project proponent and also directingthe proceedings for removal of encroachments to be continued.

GPleadings in the Substantial Writ Petition

9. As stated earlier, the appellants herein were the petitioners in 2writ petitions before the High court. But the writ petition in whichsubstantial reliefs were claimed by the appellants before the High court,was the one in WP (C) No. 4808/2012. Briefly stated, the claim of theHappellants in WP (C) No. 4808 of 2012 was (i) that CRZ Notification of

1991 does not apply to islands like Nediyathuruthu and that islands whichdot the backwaters of Kerala were brought within the purview of theRegulations, for the first time only by the CRZ Notification of 2011; (ii)that since the appellants obtained NOC on 02.08.1996 and Building Permiton 10.10.2007 from the Gram Panchayat, CRZ Notification of 2011 cannotbe applied to their case; (iii) that CRZ Notification of 1991 categorisessmall islands under CRZ IV and there is no prohibition for constructionof buildings, as standards are yet to be evolved; (iv) that the distancefrom HTL in respect of small islands is required to be decided based oncase to case study; (v) that the land of the appellant falls under CategoryIV and hence, in the absence of any special demarcation of small islands,none of the restrictions can apply; (vi) that CZMP for Kerala under the1991 Notification was prepared in a haphazard and hasty manner; (vii)that KCZMA was constituted by a notification dated 26.11.1998, with amandate to formulate area-specific management plans, but no such planswere formulated; (viii) that in the absence of any area-specific criteriafor determination of CRZ, the 1991 Notification is not applicable tobackwater islands; (ix) that Annexure I of 1991 Notification classifiessmall islands as falling under Category IV, and CRZ II and CRZ IIIrelate only to areas distinct from islands; (x) that since the average widthof the backwater island where the appellants had completed construction,is only 20-60 meters, the extension of the restriction relating to CategoryIII will be violative of the right conferred under Article 300A; and (xi)that even if the 1991 Notification applies to small islands, Annexure I ofthe Notification specifically requires HTL to be ascertained dependingupon 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 behalfof the Kerala Coastal Zone Management Authority to the writ petition(WP No. 19564 of 2011) filed by the local traditional fishermen, theytook a stand (i) that Vembanad lake falls under CRZ IV; (ii) thatNediyathuruthu island falls under CRZ III; (iii) that Nediyathuruthu islandhas CRZ landward of HTL upto 100 meters; (iv) that the construction ofa resort required clearance under CRZ Notifications of 1991 and 2011;(v) that Vembanad kayal (lake) is declared as critically vulnerable coastalarea, (vi) that though Panavally gram panchayat does not have sea front,it has water bodies with tidal influence and (vii) that the Panchayat wasnot competent to issue Building Permit when CRZ Notification wasapplicable.

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A11. However, in the counter-affidavit filed in WP (C) No. 4808 of2012, the Kerala Coastal Zone Management Authority took a stand thatthe island falls under CRZ I. The distinction between CRZ I and CRZIII under the 1991 Notification was (i) that areas which are ecologicallysensitive and important, such as national parks/marine parks, sanctuaries,reserve forests, wildlife habitats, mangroves, corals/coral reefs, areasBclose to breeding and spawning grounds of fish and other marine life,areas of outstanding natural beauty/historically/heritage areas, areas richin genetic diversity, areas likely to be inundated due to rise in sea levelconsequent upon global warming and such other areas as may be declaredby the Central Government or concerned authorities and the areasCbetween LTL and HTL fall under CRZ I, while (ii) areas that are relativelyundisturbed and those which do not belong to either Category I or II, butwhich include coastal zones in rural areas and also areas within municipallimits or other legally designated urban areas which are not substantiallybuilt up, fall under CRZ III.D12. In so far as the restrictions/regulation of activities in CRZ I/

D12. 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 ManagementAuthority. While no new construction except those indicated in theNotification are permitted in CRZ I, areas up to 200 meters from theHTL was to be earmarked as ‘no development zone’ in CRZ III. SinceEthe counter-affidavit of the Coastal Zone Management Authorityproceeded specifically on the basis that Nediyathuruthu island has CRZlandward of HTL upto 100 meters, the contradiction in the stand takenby the Coastal Zone Management Authority would not inure to the benefitof the appellant.FFindings of the High court on merits

13. In the common order covering both the islands, essence, theHigh Court held (i) that both Nediyathuruthu and Vettila Thuruthu islandsare backwater islands of Kerala and hence, covered by CRZ Notificationof 1991; (ii) that though the requirement for the conduct of a salinity test,Gfor classifying an area as CRZ, was introduced only in the year 2002 byway of an amendment, the authority had asserted to have carried outsalinity test on the basis of 5 ppt (parts per thousand); (iii) that the permitissued to the appellant made it mandatory for them to be compliant withthe CRZ Notification of 1991 and hence, they cannot attack the CZMPHon the ground that salinity test was not done during the driest period asprescribed in the 2002 amendment; (iv) that the words ‘small islands’

included in CRZ IV in the Notification of 1991, are intended to coversmall marine islands in the vicinity of Andaman & Nicobar andLakshadweep, but are not intended to cover backwater islands whichare influenced by the tidal effect contemplated in the Notification; (v)that backwater islands which have mangroves and areas close to breedingand spawning of fish and other marine life will fall under CRZ I; (vi) thatCRZ Notification of 1991 clearly takes within its sweep, the coastalstretches of the backwater islands, along with the coastal stretches ofthe sea; (vii) that in view of the development of environmentaljurisprudence and the law governing the field, the restriction and regulationof the right to property through procedure established by law, cannot betaken to be a negation of the right guaranteed under Article 300A; (viii)that the specific stand of the authority is that Nediyathuruthu is a lowlying area likely to be inundated due to rise in sea level; (ix) that filtrationponds, by their very nature, lie adjacent to backwaters and Nediyathuruthuis 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 areahas been marked as filtration pond; (xi) that in a writ petition underArticle 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 landwardside upto 500 meters will fall within coastal regulation zone; (xiii) thatthe distance from the HTL was to apply on both sides of the rivers,creeks, backwaters; (xiv) that though the distance could be modified, ona case to case basis for reasons to be recorded, the distance cannot bemodified 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 reducedto 50 meters, but this Court struck down the same; (xvi) that therefore,the plan prepared by KCZMA in 1995 had to be modified to be in tunewith the judgment; (xvii) that even according to the company, the widthof the island, where the construction exists, is between 20 to 60 meters;(xviii) that in S. Jagannath v. UoI[2], this Court held the filtration pondsto be an ecologically polluting feature, but the same cannot go to therescue of the appellants, when the island is a backwater island fallingunder CRZ I; (xix) that there was no requirement for an island specificstudy, in view of the fact that the island in question is not a marine islandbut only a backwater island and (xx) that the failure to obtain a cadastralmap cannot be fatal.

2 (1997) 2 SCC 87

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A14. For coming to the aforesaid conclusions, the High Court solicitedthe assistance of one Dr. K. V. Thomas, a scientist and who was thehead of the Marine Sciences Division in the Centre for Earth ScienceStudies, Akkulam, Thiruvananthapuram. It appears from the impugnedorder that the High Court put to Dr. K.V. Thomas, specific questions asto (i) whether HTL can be found only on the sea coast and not in theBother parts; (ii) the test carried out for fixing the HTL; and (iii) howNediyathuruthu was identified as containing a filtration pond. It appearsfrom the impugned order that the learned counsel appearing for theappellants, was also permitted to put questions to Dr. K. V. Thomas.Thereafter, the appellants filed an affidavit of objections, to the statementsCmade by Dr. Thomas. This affidavit of objections merely highlighted thediscrepancies and errors in the statement of Dr. Thomas. There was noobjection to the very procedure adopted by the High Court in solicitingthe opinion of Dr. Thomas. Nor was any objection made to his statementsas being biased.DFindings of the High Court on encroachments

15. Apart from soliciting an expert opinion on the technical issuesraised in the writ petitions, the High Court also got a survey carried outby the Deputy Surveyor of Alappuzha in the presence of the DistrictCollector, so as to find out (i) the extent of the property in the possessionEof the appellants and (ii) the exact extent of the island. This was done bythe High Court in the light of a specific allegation made by the localfishermen and the Society that the appellants were also guilty ofencroachments. Pursuant to the order passed by the High Court to thateffect on 22.11.2012, a survey and measurement was done and a reportsubmitted. As per the report, there was an encroachment, which led to aFnotice being issued under Section 11 of the Kerala Land ConservancyAct, 1957. After the report was filed, the appellants filed an interlocutoryapplication in IA No. 16744 of 2012 seeking clarification. The High Courtthen left it open to the appellants to impugn the correctness of the reportof the survey, before a competent forum. In other words, without sealingGthe fate of the appellants on the issue of encroachments, solely on thebasis of the report of the survey conducted under the supervision of thecourt, the High Court gave a lease of life to the appellants to agitate thesame in a separate proceeding. Keeping these findings of the High Courtin mind, let us now see the grounds of attack to the impugned order.

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Rival Contentions

16. Assailing the impugned order of the High Court, it is contendedby Dr. A. M. Singhvi, learned Senior counsel (i) that without conductinga salinity test under the CRZ Notification of 1991 at any point of time, afinding was arrived at as though the salinity of the land was 5 ppt andthat therefore, the land constituted backwaters directly influenced bythe tidal effect of the sea; (ii) that the finding about the existence offiltration ponds on the appellant’s land, which is an inherent feature ofCRZ I, is flawed in as much as most of the maps depict the area ashaving coconut plantations, which cannot co-exist along with a filtrationpond; (iii) that no State other than the State of Kerala included filtrationponds as a feature of CRZ, though a scientific Sub-Committee of theKCZMA itself found no scientific basis for defining and characterisingfiltration ponds; (iv) that there were fatal errors in the CZMP, whichwere not rectified even after the Ministry of Environment and Forestspointed out several discrepancies and even after a Committee of Expertschaired by Dr. M. S. Swaminathan found the plan to be replete witherrors; (v) that the High Court could not have proceeded on the ipsedixit of a so-called expert by name Dr. K. V. Thomas who was calledsuo moto and whose statements were taken on record as the gospeltruth; (vi) that the Guidelines of the MOEF requiring demarcation ofHTL and LTL after physical verification were not followed and micro-level cadastral maps were not drawn by the State of Kerala; (vii) thatsince the appellant’s land is a 5 hectare island falling within the definitionof ‘small islands’ in CRZ IV, an island specific study was mandatory,before deciding the classification, but the same was not done.; (viii) thatthe categorisation of the island as critically vulnerable coastal area(CVCA), is flawed, as no notification by MOEF as required by CRZ2011, was ever issued and the mandatory sequence for identifying andnotifying CVCA was not followed and (ix) that as many as twelvepermissions/ approvals obtained by the appellant from various authoritiesand the completion of 75% of the construction of the resort, were notgiven due weightage by the High court.

17. Mr. Sanjay Parikh, learned senior counsel appearing for theprivate parties and Mr. Pallav Shishodia, learned senior counsel appearingfor the State of Kerala and KCZMA raised a preliminary objection to adetailed deliberation on the merits of the case. This was on the groundthat the common order impugned in these appeals has already attained B

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Afinality with the dismissal of the special leave petitions through a reasonedjudgment of this Court in relation to Vettila Thuruthu island. It is alsocontended by them that the appellants cannot now blow hot and cold,after having agreed to take refuge under a notification dated 14.03.2017issued by the MOEF ( which is in the nature of a scheme for regularization)and after having moved an application under the said notification. TheyBcontended that in any case, the order of the High Court was justified onmerits and that there is no reason for this Court to take a different viewfrom the one taken in Vaamika island (supra).

18. However, Dr. A. M. Singhvi, learned senior Counsel for theappellants, contended that the decision of this Court in Vaamika IslandCwas confined only to the facts relating to Vettila Thuruthu island and thatsince Vettila Thuruthu island and Nediyathuruthu island (to which thepresent appeals relate) had different features, the correctness of theorder of the High Court in relation to Nediyathuruthu island required tobe gone into independently. The distinguishable features, according toDhim are: (i) that Vettila Thuruthu was obviously covered by CRZ 2011Notification, as the Building Permit for the appellant therein (Vaamika)was granted on 30.04.2012; (ii) that though the contentions relating tosalinity, filtration ponds, the opinion of Dr. K. V. Thomas, the lack ofcadastral maps and the identification of the area as CVCA are dealtwith in the judgment of this Court in Vaamika Island, in passing, in twoEparagraphs, the substantive factual issues are not covered; (iii) that thefinding of existence of mangroves in Vettila Thuruthu island and theabsence of such a finding in relation to Nediyathuruthu, is a significantdistinction; (iv) that the distance through backwaters from VettilaThuruthu to the appellants’ land is about 4.3 kilometers and VettilaFThuruthu island, as seen from Map 32A, is closer to the Arabian Seathan Nediyathuruthu; (v) that the Building Permit issued to the appellantwas on 10.10.2007, long before the issue of CRZ 2011; (vi) that thedraft KCZMP 2018 and relevant map of KCZMP 2009 make it clearthat Vettila Thuruthu is directly influenced by tidal effects and has beenshown as inter-tidal zone, which is absent in Nediyathuruthu; and (vii)Gthat the issue relating to island specific studies/ small island was notdealt with in Vaamika Island and it is a significant distinguishing feature.

-Preliminary Issue whether the judgment in Vaamika Islandis distinguishable H

KAPICO KERALA RESORTS PVT. LTD. v. STATE OFKERALA & ORS. [V. RAMASUBRAMANIAN, J.]

19. In the light of the rival contentions, it is necessary for us tofirst deal with the preliminary issue, keeping in mind the fact that thejudgment in Vaamika island is not under review before us. Thecorrectness of the view expressed therein, has not been doubted and areference made to us. Therefore, it cannot be our endeavor to undertakea research with magnifying glasses to find out miniscule differencesbetween the 2 sets of cases. Our endeavour can only be to find out, ifthe major issues raised in both cases were substantially the same. If theanswer is yes, the appeals are liable to be thrown out. If no, the argumentson merits have to be considered independent of the decision in Vaamika.Therefore, let us now see what were the issues considered by the Highcourt as having arisen in these cases and how the High court answeredthem.

The issues dealt with by the High court

The issues dealt with by the High court

20. The High Court, in the impugned judgment, compartmentalisedthe issues arising for consideration into 2 parts, the first dealing withissues in common for Vettila Thuruthu and Nediyathuruthu and the nextdealing with issues peculiar to each of them. The High Court took up forconsideration, from paragraph 31 onwards of its judgment, common issuesarising in respect of both the islands. After dealing with and answeringthe common issues, from paragraph 31 upto paragraph 85, the HighCourt independently dealt with (i) the issue of encroachments allegedlymade by the appellant in paragraph 86 and (ii) the issue relating to somespecific reliefs sought by the local fishermen and a trade union in twoseparate 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 inrespect of both the islands are :

(a) Whether the islands in the backwaters of Kerala are coveredunder the CRZ Notification of 1991 and whether the failureto conduct salinity test as required by the amendment madein 2002, vitiated the stand of the KCZMA?

(b) Whether the islands would fall under CRZ IV and what areits effect on the property rights and the doctrine of legitimateexpectation?

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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 usingsatellite images without any field check, is correct?

(d) Whether filtration ponds are an anathema in the light of thedecision of this Court in S. Jagannath v. Union of IndiaB(supra)?

(e) Whether there is any reliable material to classify the areasas 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 aswell as the proponent of the project in Vettila Thuruthu island. We haverecorded the gist of those findings of the High court, in paragraph-13above.D22. As we have indicated elsewhere, the decision of this Court in D22. As we have indicated elsewhere, the decision of this Court inVaamika Island is sought to be distinguished on the basis of sevenidentifiable features, some of which, according to the appellants, arecovered in the decision in Vaamika Island, only in passing reference.According to Dr. Singhvi, learned senior counsel, the issues relating tosalinity, filtration ponds, the opinion of Dr. K. V. Thomas, the lack ofEcadastral maps and the identification of the lake as CVCA, are allmentioned in paragraphs 23 and 24 of the decision of this Court inVaamika Island, only in passing. It is his contention that these twoparagraphs of the decision of this Court in Vaamika Island, seek todecide these issues summarily without any reasoning and that therefore,Fthis Court is entitled to decide those issues independently in relation toNediyathuruthu island. Let us now see if this contention is valid.

23. As pointed out by this Court in Kunhayammed v. State ofKerala[3], there is a distinction between the dismissal of a special leavepetition by a non-speaking order where no reasons are recorded and theGdismissal of a special leave petition by a speaking or reasoned order. Inboth cases, the doctrine of merger would not apply. But in cases fallingunder the latter category, the reasons stated by the Court would attractthe applicability of Article 141 of the Constitution, if a point of law hasbeen declared therein. If what is stated in the order of the Supreme H3 (2000) 6 SCC 359

H3 (2000) 6 SCC 359

Court (before the grant of leave) happen to be findings recorded by theSupreme Court, not amounting to a declaration of law, the findings sorecorded would bind only the parties thereto. Though the views expressedin Kunhayammed were thought of to be in conflict with the viewsexpressed in certain other decisions [Abbai Maligai Partnership Firmv. K. Santhakumaran[4]], and the issue was referred to a larger benchfor an authoritative pronouncement, this Court has now clarified inKhoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara[5], thatKunhayammed lays down the correct law.

24. It is no doubt true that the decision in Vaamika Island wasrendered at the stage of special leave petitions. Obviously this Courtrefused leave, but went on to affirm the findings of the High Court,recording detailed reasons therefor. The opinion expressed in paragraphs27 and 28 of Vaamika Island, does not give any room for escape evenfor the appellants before us. Paragraphs 27 and 28 of the decision inVaamika Island read as follows:

“27. We are of the considered view that the above directionwas issued by the High Court taking into consideration thelarger public interest and to save Vembanad Lake which is anecologically sensitive area, so proclaimed nationally andinternationally. Vembanad Lake is presently undergoing severeenvironmental degradation due to increased humanintervention and, as already indicated, recognising the socio-economic importance of this waterbody, it has recently beenscheduled under “vulnerable wetlands to be protected” anddeclared as CVCA. We are of the view that the directions givenby the High Court are perfectly in order in theabovementioned perspective.

28. Further, the directions given by the High Court in directingdemolition of illegal construction effected during the currencyof the 1991 and 2011 CRZ Notifications are perfectly in tunewith the decision of this Court in Piedade FilomenaGonsalves v. State of Goa [(2004) 3 SCC 445] , wherein thisCourt has held that such notifications have been issued inthe interest of protecting environment and ecology in the 4 (1998) 7 SCC 386

5 (2019) 4 SCC 376

A

B

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Acoastal area and the construction raised in violation of suchregulations cannot be lightly condoned.”

25. The appellants cannot also escape the findings recorded bythis Court in other paragraphs, on the common issues. Even accordingto the appellants, some of those common issues, such as salinity, filtrationBponds, cadastral maps, CVCA, etc. are dealt with by this Court inparagraphs 23 and 24 of the reported decision. The contention that thesecommon issues are dealt with in passing, in the judgment of this Courtand that therefore, they are entitled to be re-agitated, cannot be accepted.

26. If detailed reasons given by the High Court or a subordinateCCourt, find acceptance by this Court, in specific terms, the question ofscrutinising them for finding out whether they were in the passing or indetailed focus, does not arise. Such an exercise would tantamount toreviewing the decision.

27. Each and every particular issue dealt with by the High CourtDas common to both the islands, was considered by this Court in VaamikaIsland and a finding recorded. In particular –

i.Map Number 32A of CZMP as well as the techniques employedto ascertain whether the constructions were made in violationof CRZ 1991 as well as 2011, were found by this Court inEparagraph 25, not to be suffering from any illegality.

ii. KCZMP was held by this Court in paragraph 23 of Vaamikato have been prepared based on the guidelines of MOEF, takingcare of the maps prepared by the Survey of India (Governmentof India) and cadastral maps prepared by the Survey departmentof the Government of Kerala.F

iii. It was also pointed out in paragraph 23 that the area betweenLTL and HTL is also CRZ I and filtration ponds are shallowwater bodies and hence they fall under CRZ I as pernotification.

Giv. In paragraph 24, this Court specifically concurred with the viewof the High Court that islands could be coastal stretches ofrivers or backwaters or backwater islands and that they areclearly covered by CRZ I and not under CRZ III or CRZ IV.

v. In paragraph 24 this Court also endorsed the view of the HighHCourt that even before the salinity test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5ppt which was made as per standard measurements in partsper thousand.

28. The first distinction sought to be made by the appellants betweentheir case and the case relating to Vettila Thuruthu is that the BuildingPermit issued to Vaamika was post 2011 Notification. But this distinctionwill not go to the rescue of the appellants, in view of the fact that thecategorisation under CRZ I under the 1991 Notification was upheld bythis Court and this is why this Court found the constructions made evenin Vettila Thuruthu as violative of both the notifications, namely 1991and 2011 Notifications (paragraph 24 of Vaamika Island).

29. In any case, the appellants herein obtained the NOC on02.08.1996 and the Building Permit on 10.10.2007. In paragraph 26 ofits decision in Vaamika Island, this Court recorded the fact that theDirector of Panchayats vide letters dated 07.03.1995 and 17.07.1996had directed all panchayats to strictly follow the provisions of CRZNotification and that it was found to have been violated while grantingpermission. This finding hits at the very root of the contention that theappellants’ permit will not be affected, as it was pre-2011 Notification.In the teeth of the letters of the Director of Panchayats dated 07.03.1995and 17.07.1996, addressed to all the panchayats, advising them to followthe provisions of CRZ Notification, the NOC and Building Permit obtained,respectively on 02.08.1996 and 10.10.2007, by the appellants were clearlyillegal.

30. Both Vettila Thuruthu and Nediyathuruthu islands areadmittedly backwater islands nestled in Vembanad lake. In paragraph27 of the judgment in Vaamika Island, this Court has indicated thatVembanad lake is an ecologically sensitive area and that considering thesocio-economic importance of this water body, it had been scheduledunder “vulnerable wetlands to be protected” and declared as CVCA.We do not know how this finding can be held to be applicable only toVettlia Thuruthu island.

31. According to the appellants, CRZ 2011 prescribes a procedurefor identifying, planning and implementing CVCA. To begin with,guidelines may have to be framed by MOEF in consultation with thestakeholders. According to the appellants, the process of consultationwith the local fishers and other communities and the process of AB

C

D

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Aidentification and planning of CVCA, the process of preparation ofIntegrated Management Plan etc. were not even undertaken and hence,Vembanad lake though listed in paragraph 8(V)(4)(b) of CRZ 2011Notification as CVCA, cannot be taken to be a notified CVCA.

32. But the above contentions are already dealt with by the HighBCourt in paragraph 120-122 of its judgment. In paragraph 121 of itsjudgment, the High Court recorded a specific finding that when the wholeof Vembanad lake is included as a CVCA, subject to a process, theCourt has to take a view which serves the object of the area beingtreated as ecologically sensitive and hence a CVCA. It is with particularreference to this finding that this Court held in paragraph 27 of VaamikaCIsland that the whole of Vembanad lake is to be seen as CVCA.

33. Once we find that the main issues arising in common for boththe islands and dealt with in common by the High Court, had received aseal of approval from this Court by a reasoned order, there is no scopefor revisiting the same on the basis of certain minor ancillary issues notDspecifically dealt with, in the judgment. Therefore, we hold that thedistinctions sought to be made out by the appellants are not substantialand hence, we are not inclined to revisit the issues already clinched bythis Court.

Alternative SubmissionsE

34. Dr. A. M. Singhvi, learned senior counsel for the appellants,made two alternative submissions without prejudice. The first is that bya notification dated 14.03.2017, a window of opportunity akin toregularisation has been provided to those who made developments withoutcomplying with statutory requirements. According to him, the appellantsFavailed this opportunity and the Terms of Reference were granted on05.04.2018. KCZMA also considered the application of the Petitioner inits meeting held on 07.07.2018 and took a decision to inform the MOEFof the complete details of the case. Therefore, it was contended by thelearned senior counsel that the appellants should be allowed at least thebenefit of the said notification.G

35. We have perused the Notification dated 14.03.2017. Theprimary object of the said Notification appears to be to address the issueas to how to deal with the projects and activities carried out withoutobtaining prior environmental clearance. The Notification seeks to declarethe projects and activities requiring prior environmental clearance underH

EIA Notification, 2006, but carried out without obtaining such clearance,as cases of violation of the EIA Notification, 2006 and it seeks to providean opportunity to those violators to avail the benefit of a one-timeclearance. The Notification dated 14.03.2017 does not deal with casesof violation of CRZ Notifications. Therefore, we cannot say anything onthe 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 withoutprejudice, is on the basis of the CRZ Notification 2019 issued on18.01.2019. According to the learned senior counsel for the appellants,the 2019 notification permits construction and operation, so long as it is20 meters from the HTL. According to the appellants, even if all theconstructions put up by them are now demolished, the appellants will beentitled to build once again, approximately 60 per cent of the area coveredby the existing superstructures.

37. But the above argument does not carry any weight. Paragraph10.2 of the CRZ 2019 Notification states that all inland islands in thecoastal backwaters and islands along the mainland coast shall be coveredby the Notification. It further states that in view of the unique coastalsystems of backwater islands and islands along the mainland coast, alongwith space limitations in such coastal stretches, CRZ of 20 meters fromthe HTL on the landward side shall uniformly apply. However, paragraph10.2(ii) states that activities shall be regulated as under: (a) existingdwelling units of local communities may be repaired or reconstructedwithin 20 meters from the HTL of these islands, but no new constructionshall be permitted in this zone; (b) foreshore facilities such as fishingjetty, fish drying yards, net mending yard, fishing processing by traditionalmethods, boat building yards, ice plant, boat repairs and the like maybetaken up in CRZ limits subject to environmental safeguards.

38. Therefore, it is not as though the reduction of the distanceparameter to 20 meters from the HTL is intended to confer a benefitupon persons like the appellants. Moreover, even the CRZ 2019Notification places Vembanad lake in the category of CVCA in paragraph3.1 but with a different reach. There is a world of difference betweenthe 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 tobe declared as CVCAs were identified but paragraph 8(V)(4)(b)

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Amandated that those identified areas can be declared as CVCAs througha process of consultation. Paragraph 8(V)(4)(c) required guidelines tobe developed and notified by MOEF in consultation with the stakeholders,for identifying, planning, notifying and implementing CVCAs. IntegratedManagement Plans were also required to be prepared for CVCAs underparagraph 8(V)(4)(d) of the 2011 Notification.B

(ii) But under paragraph 3.0 of the CRZ 2019 Notification, certaincoastal areas are accorded special consideration for the purpose ofprotecting the critical coastal environment and the difficulties faced bylocal communities. Paragraph 3.1 identifies the critically vulnerable coastalareas. They include the Vembanad lake. While the words contained inCparagraph 8(V)(4)(b) of the 2011 Notification are: “…shall be declared as CVCA through a process of consultation with the fisher and othercommunities inhabiting the area…”, the words contained in paragraph3.1 of the 2019 Notification are “…shall be treated as CVCA andmanaged with the involvement of coastal communities includingDfisher folk”.

39. Therefore, for the appellants, the situation has gone from badto worse. Under the 2011 Notification the areas identified in theNotification had to be declared as CVCAs only through a process ofconsultation with local fisher, etc. Guidelines are to be put in place forEidentifying, notifying and implementing CVCA but 2019 Notificationstraightaway treats the named areas as CVCAs and vests theirmanagement with the Authority with the involvement of coastalcommunities. Therefore, the alternatives claimed by the appellants alsodo not appear to be viable for them.F40. Hence, in the light of our finding (i) that the substantial issues

40. Hence, in the light of our finding (i) that the substantial issuesthat arose in common for both the islands have already been answeredin Vaamika Island (supra), and (ii) that the distinguishing features soughtto be projected, are not so material as to take a different view than theone taken therein, the appeals are liable to be dismissed. Accordingly, allthe appeals are dismissed. There shall be no order as to costs.

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Ankit Gyan

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