Environment – Lake and Backwater Islands – Protection of – The High Court, in a batch of cases, was concerned about the 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 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, 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 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 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 – 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 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 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 – 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 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 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 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 Court in Vaamika Island and a finding recorded. In particular – 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 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 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 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 between their case and the case relating to Vettila Thuruthu is that the Building Permit issued to Vaamika was post 2011 Notification. But this distinction will not go to the rescue of the appellants, in view of the fact that the categorisation under CRZ I under the 1991 Notification was upheld by this Court and this is why this Court found the constructions made even in Vettila Thuruthu as violative of both the notifications, namely 1991 and 2011 Notifications (paragraph 24 of Vaamika Island). [Para 28][927-B-C]
5. In any case, the appellants herein obtained the NOC on 02.08.1996 and the Building Permit on 10.10.2007. In paragraph
26 of its decision in Vaamika Island, this Court recorded the fact that the Director of Panchayats vide letters dated 07.03.1995 and 17.07.1996 had directed all panchayats to strictly follow the provisions of CRZ Notification and that it was found to have been violated while granting permission. This finding hits at the very root of the contention that the appellants’ permit will not be affected, as it was pre-2011 Notification. In the teeth of the letters of the Director of Panchayats dated 07.03.1995 and 17.07.1996, addressed to all the panchayats, advising them to follow the provisions of CRZ Notification, the NOC and Building Permit obtained, respectively on 02.08.1996 and 10.10.2007, by the appellants were clearly 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 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]
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 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-GH; 928-A]
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 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]
9. Once it is found that the main issues arising in common for both the islands and dealt with in common by the High Court, had received a seal of approval from this Court by a reasoned order, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment. Therefore, this Court holds that the distinctions sought 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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