Kerala High Court
Suraj K.S vs State Of Kerala on 27 November, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939
WP(C).No. 26866 of 2016 (G)
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PETITIONER(S) :
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1. SURAJ K.S.,
AGED 33 YEARS, S/O.SUBRAHMANNYAM,
RESIDING AT KARIAYEZHUTHU(H),
VALLIVATTAM P.O, THRICHUR-680 123.
2. THILAKAN P.G.,
AGED 51 YEARS, S/O.GOVINDAN,
RESIDING AT POLASSERY (H), VALLIVATTOM P.O,
THRICHUR-680 123.
BY ADVS. SRI.RAJAN VISHNURAJ
SRI.V.HARISH
SRI.P.G.SURESH
SRI.G.SUDHEER (THURAVOOR)
RESPONDENT(S) :
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1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
SCIENCE AND TECHNOLOGY DEPARTMENT,
SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004,
REPRESENTED BY ITS MEMBER SECRETARY.
3. DISTRICT COLLECTOR, THRISSUR,
FIRST FLOOR, CIVIL STATION, CIVIL LN ROAD,
KALYAN NAGAR, AYYANTHOLE, THRISSUR,
KERALA-680 003.
4. CHIEF TOWN PLANNER,
NANDANKODE, THIRUVANANTHAPURAM-695 003.
..2/-
..2..
WP(C).No. 26866 of 2016 (G)
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5. LOCAL LEVEL MONITORING COMMITTEE
CONSTITUTED UNDER CONSERVATION OF PADDY LANDS
AND WETLANDS ACT, VELLANGALLUR GRAMA PANCHAYATH,
PIN-680 662, REPRESENTED BY THE AGRICULTURAL OFFICER,
VELLANGALLUR.
6. VILLAGE OFFICER,
VALIYAVATTOM VILLAGE, THRISSUR-680 123.
7. VELLANGALLUR GRAMA PANCHAYAT,
PANCHAYATH OFFICE, VELLANGALLUR,
THRISSUR DISTRICT, PIN-680 662,
REPRESENTED BY ITS SECRETARY.
8. STATE WETLAND AUTHORITY, KERALA,
REPRESENTED BY ITS CONVENOR,
PRINCIPAL SECRETARY (ENVIRONMENT),
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
9. M/S.AQUATIC PROTEINS PRIVATE LIMITED,
AMALGAM HOUSE, BRISTO ROAD,
WELLINGTON ISLAND, KOCHI-682 003,
REPRESENTED BY ITS AUTHORIZED OFFICER.
* ADDITIONAL R10 IMPLEADED
10. THE DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE,
PALLIMUKKU-KANNAMMOOLA RD., VELAKUDI,
THIRUVANANTHAPURAM- 695 024, REPRESENTED BY ITS
DIRECTOR.
* ADDITIONAL R10 IS IMPLEADED AS PER ORDER DATED IN 27.11.2017 IN
I.A.NO. 5005 OF 2017.
R1,R3 TO R6 & R8 BY GOVERNMENT PLEADER SRI.JAFFAR KHAN
R2 BY ADV. SRI.PRAKASH C.VADAKKAN. J., S.C
ADV. SRI.M.P.PRAKASH, S.C,
R7 BY ADVS. SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
R9 BY ADVS. SRI.C.K.KARUNAKARAN
SRI.JOPHY POTHEN KANDANKARY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-10-2017, THE COURT ON 27-11-2017 DELIVERED THE FOLLOWING:
Msd.
WP(C).No. 26866 of 2016 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: A TRUE PHOTOCOPY OF THE BUILDING PERMIT
NO.A5.753A/8216/16 DATED 23.03.2016.
EXHIBIT P2: A TRUE PHOTOCOPY OF THE JUDGMENT IN
W.P(C).NO. 14359 OF 2013 DATED 28.11.2013.
EXHIBIT P3: A TRUE PHOTOCOPY OF THE ORDER B 11-2760/2014
DATED 03.03.2014 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P4: A TRUE PHOTOCOPY OF THE ORDER NO.B-11-2760/2014
DATED 26.03.2015 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P5: A TRUE PHOTOCOPY OF THE RESOLUTION DATED 01.07.2015
PASSED BY THE GRAMA SABHA UNDER THE 7TH RESPONDENT.
EXHIBIT P6: A TRUE PHOTOCOPY OF THE LETTER DATED 28.07.2015 ISSUED
BY THE 3RD RESPONDENT TO THE 9TH RESPONDENT.
EXHIBIT P7: A TRUE PHOTOCOPY OF THE LETTER DATED 27.10.2015 ISSUED
BY THE 3RD RESPONDENT TO THE 9TH RESPONDENT.
EXHIBIT P8: A TRUE PHOTOCOPY OF THE LETTER DATED 09.02.2016 ISSUED
BY THE 3RD RESPONDENT TO THE 9TH RESPONDENT.
EXHIBIT P9: A TRUE PHOTOCOPY OF THE ORDER NO.8211/2015/DDS
DATED 06.02.2016.
EXHIBIT P10: A TRUE PHOTOCOPY OF THE ORDER NO.C2-2053/2016/D.DIS
DATED 11.03.2016.
EXHIBIT P11: TRUE PHOTOGRAPHS SHOWING THE RECLAMATION ACTIVITIES
IN THE AREA.
EXHIBIT P12: A TRUE PHOTOCOPY OF THE LETTER DATED 01-04-2013 ALONG
WITH THE RECOMMENDATION OF THE 5TH RESPONDENT.
EXHIBIT P13: A TRUE PHOTOCOPY OF THE REPRESENTATION PREFERRED
BEFORE THE 5TH RESPONDENT IN 2013.
EXHIBIT P14: A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER
G.O.(RT)NO.51/11/ENVT DATED 30.05.2011.
EXHIBIT P15: A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER
G.O.(P)NO.157/2015/ENVT DATED 13.11.2015.
EXHIBIT P16: A TRUE PHOTOCOPY OF THE LETTER DATED 29.09.2016 ISSUED
BY THE AGRICULTURE OFFICER.
WP(C).No. 26866 of 2016 (G)
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EXHIBIT P17: A TRUE PHOTOCOPY OF THE ORDER DATED 08.02.2017 IN
W.P(C).NO. 230/2001.
EXHIBIT P18: A TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING OF
THE L.L.M.C DATED 26.08.2016.
EXHIBIT P19: A TRUE PHOTOCOPY OF THE REPORT PREPARED BY
THE SALIM-ALI FOUNDATION HEADED BY DR.V.S.VIJAYAN.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R9(A): TRUE COPY OF EXTRACT FROM DATA BANK OF
VALLIVATTOM VILLAGE.
EXHIBIT R9(B): TRUE COPY OF EXTRACT OF BTR.
EXHIBIT R9(C): TRUE COPY OF POSSESSION CERTIFICATE
DATED 07.07.2016.
EXHIBIT R9(D): TRUE COPY OF BASIC TAX RECEIPT DATED 05.07.2016.
EXHIBIT R9(E): TRUE COPY OF ORDER DATED 15.12.2015 OF
DIRECTORATE OF FACTORIES & BOILERS.
EXHIBIT R9(F): TRUE COPY OF NOC DATED 27.02.2016 OF FIRE AND
RESCUE SERVICES.
EXHIBIT R9(G): TRUE COPY OF CONSENT TO ESTABLISH DATED 26.10.2015
ISSUED BY POLLUTION CONTROL BOARD.
EXHIBIT R9(H): TRUE COPY OF POSSESSION AND LOCATION CERTIFICATE
DATED 21.07.2015.
EXHIBIT R9(I): TRUE COPY OF ORDER DATED 06.02.2016 OF CHIEF
TOWN PLANNER.
EXHIBIT R9(I)(A): TRUE COPY OF ORDER DATED 11.03.2016 OF CHIEF
TOWN PLANNER.
EXHIBIT R9(J): TRUE COPY OF BUILDING PERMIT DATED 23.03.2016.
EXHIBIT R9(K): PHOTOGRAPHS SHOWING THE IRRIGATION CHANNELS.
EXHIBIT R9(L): TRUE COPY OF CERTIFICATE DATED 16.11.2015 OF
AGRICULTURAL OFFICER.
EXHIBIT R9(M): TRUE COPY OF SURVEY SKETCH FOR COMPANY'S LAND.
EXHIBIT R9(N): TRUE COPY OF MASS PETITION SUBMITTED BY
THE RESIDENTS OF THE LOCALITY SUPPORTING
THE PROJECT OF THE 9TH RESPONDENT.
WP(C).No. 26866 of 2016 (G)
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EXHIBIT R9(O): TRUE EXTRACTS OF THE MINUTES OF THE 17TH MEETING
OF THE BOARD OF KSSWCB.
EXHIBIT R9(P): TRUE COPY OF KSIDC CERTIFICATE.
EXHIBIT R9(Q): TRUE COPY OF MOEFCC LETTER DATED 03.07.2015 IN
FILE NO.J-22012/43/2006-CS(W).
EXHIBIT R9(S): TRUE COPY OF BTR MAINTAINED AT THE VILLAGE OFFICE,
VALLIVATTOM VILLAGE RELATING TO SY.NO.286/1 AND
286/2.
EXHIBIT R9(T): TRUE COPY OF LETTER DATED 22.12.2016 OF PRESIDENT
OF VALLIVATTOM PANCHAYATH.
EXHIBIT R9(U): TRUE COPY OF PHOTOGRAPHS OF THE SUBJECT LAND
PRIOR TO ANY WORK BEING UNDERTAKEN.
EXHIBIT R9(V): TRUE COPY OF PRESENT PHOTOGRAPHS OF THE LAND.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C).No.26866 of 2016
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Dated this the 27th day of November, 2017
J U D G M E N T
Petitioners are persons residing within the limits of the seventh respondent Panchayat. The grievance voiced by the petitioners in the writ petition concerns the industrial unit proposed to be established by the ninth respondent in the said panchayat.
2. The undisputed facts are the following :
During 2015, the ninth respondent, a private limited company purchased 4.0632 hectors of land within the limits of the panchayat for establishing a seafood related industrial unit. There were a few water channels in the W.P.(c).No.26866 of 2016 : 2 : said land. Earlier, the predecessors of the ninth respondent were interdicted from reclaiming the water channels in the land by the sixth respondent, the Village Officer by issuing a stop memo. Though the matter was taken up by the predecessors of the ninth respondent before the third respondent, the District Collector for vacating the stop memo, the third respondent confirmed the stop memo as per Ext.P3 order holding that the land is a wetland falling within the purview of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act). The predecessors of the ninth respondent though moved the third respondent later for review of Ext.P3 order, the request made by them in that connection was also declined by the third respondent as per Ext.P4 order. The ninth respondent who purchased the land in the meanwhile moved the third respondent for vacating the stop memo and on the said request, the third respondent initially permitted the ninth respondent to conduct an Environmental Impact Study for the project proposed to be established by them by engaging M/s.KITCO W.P.(c).No.26866 of 2016 : 3 : Ltd, a technical consultancy organisation and later vacated the stop memo as per Ext.P8 order based on the report of M/s.KITCO Ltd, holding that the project would not offend any statutory provisions or create any impact on the environment. In the meanwhile, the ninth respondent applied to the fourth respondent, the Chief Town Planner for layout approval for construction of the buildings required for the industrial unit. On the said application, though layout approval was granted by the fourth respondent as per Ext.P9 order, the same was subject to the condition that the building permit shall be issued by the panchayat only after the grievances of the persons residing around the industrial unit are redressed. On the strength of Ext P8 order, the ninth respondent later moved the fourth respondent for vacating the aforesaid condition in Ext P9 order and the fourth respondent has vacated the said condition as per Ext P10 order. Later, on the strength of Exts P8 and P10 orders, the ninth respondent obtained Ext P1 building permit and started the construction of the industrial unit. W.P.(c).No.26866 of 2016 : 4 :
3. The writ petition was filed at that point of time alleging that the Local Level Monitoring Committee constituted under the Act had in fact inspected the land during 2013 and having found that the same is a wetland coming within the purview of the Act, recommended for action as per Ext P12 for restoration of the land under the Act. It was also alleged by the petitioners that on the basis of the said recommendation, the first petitioner preferred an application before the fifth respondent, the Local Level Monitoring Committee to include the said land also in the Data Bank prepared under the Act as wet land and the same is pending. According to the petitioners, the land purchased by the ninth respondent being a wetland, the establishment of the proposed industrial unit in the said land would contravene the provisions of the Act. It is also the case of the petitioners that establishment of an industrial unit in the aforesaid land would contravene the provisions of the 2011 Coastal Regulation Zone Notification (the CRZ Notification) issued under the Environment (Protection) Act. It is the W.P.(c).No.26866 of 2016 : 5 : further case of the petitioners that the land of the ninth respondent, at any rate, would fall within the definition of 'wetland' contained in Rule 2(g) of Wetland (Conservation and Management) Rules 2010 framed under the Environment (Protection) Act and therefore, an industrial unit cannot be established in the said land in the light of the provisions contained in the said Rules. The petitioners, therefore, challenge Ext.P8 order of the third respondent, Ext.P9 order the fourth respondent and Ext.P1 building permit issued by the seventh respondent in this writ petition on that basis. Petitioners are also claiming directions to the fifth respondent to include the land of the ninth respondent in the Data Bank prepared under the Act, and directions to the third respondent to act upon upon Ext.P12 recommendation of the third respondent and take steps to restore the land to its original position.
4. The ninth respondent has filed a counter affidavit on 31/08/2016 stating, among others, that the writ petition is one instituted with ulterior motives to blackmail W.P.(c).No.26866 of 2016 : 6 : and extract money from the ninth respondent; that the industrial unit proposed by them is one which is being established in collaboration with a Mauritius Company; that the said project is the largest foreign investment project in the country in the sea food sector; that the irrigation channels existed in the land purchased by them are retained even now; that the land purchased by them is a 'garden land' as per the revenue records and that the said land is not a wetland or one included in the Data Bank prepared under the Act as wet land. It is also stated by the ninth respondent in the said counter affidavit that their project is one cleared by the State Single Window Clearance Board consisting of the Chief Secretary of the State and representatives of all the State departments concerned with the establishment of industrial units and they have obtained all the requisite permissions and licences required for establishing the industrial unit. It is also stated by the ninth respondent in the counter affidavit that though there was no statutory requirement to obtain environment impact assessment W.P.(c).No.26866 of 2016 : 7 : studies for projects in the nature of the one proposed by them, the third respondent suggested to them to conduct an Environmental Due Diligence in the light of the complaints received from the inhabitants of the locality and that Environment Due Diligence was conducted by them in the circumstances by engaging M/s.KITCO Ltd. It is also contended by the ninth respondent in the counter affidavit that it was revealed in the said study that the project does not pose any threat to the environment. As regards the recommendation made by the Local Level Monitoring Committee, it is stated by the ninth respondent in the counter affidavit that the convenor of the Local Level Monitoring Committee has inspected the property purchased by them on a request made by them and informed them as per Ext.R9(l) communication on the basis of the said inspection that the land purchased by them is a coconut garden with water channels.
5. A statement has been filed on behalf of the third respondent in the matter disclosing that the land of W.P.(c).No.26866 of 2016 : 8 : the ninth respondent is a 'garden land' as per the revenue records and and that the same is not one included in the Data Bank prepared under the Act as wetland. It is explained in the said statement that the ninth respondent had submitted a request on 07/04/2015 to lift the stop memo issued in respect of the land in terms of Exts.P3 and P4 orders; that the Tahsildar concerned has stated in the report obtained on the said request that the inhabitants in the locality are anxious about the project; and that the Environmental Due Diligence was directed to be conducted in the said circumstances. It is stated in the statement that the stop memo was withdrawn since it was found in the said study that the project would not create any environmental impact / imbalances in the locality. It is also stated by the third respondent in the said statement that there would not be any depletion in the ground water levels also on account of the project as claimed by the petitioners.
6. An affidavit has been filed by the petitioners in reply to the counter affidavit filed by the ninth respondent W.P.(c).No.26866 of 2016 : 9 : as also to the statement preferred by the third respondent. In the said reply affidavit, it is stated by the petitioners that the fifth respondent has conducted a further inspection in the property of the ninth respondent on 26/08/2016 and has decided, on the basis the said inspection, to include the land of the ninth respondent also in the Data Bank prepared under the Act as wetland.
7. A counter affidavit has been filed by the first respondent, the State Government, in the matter on 13/2/2017 reiterating the stand taken by the third respondent. In addition, it is also stated in the said counter affidavit that Exts.P3 and P4 orders have been issued by the third respondent without ascertaining the true facts; that there was no pond or water channel in the land as per the revenue records and that the water channels existed in the property are man made for the purpose of irrigation as per the practice prevalent at the relevant time for ensuring water presence in the area. It is also stated by the Government in the counter affidavit that the decision of the W.P.(c).No.26866 of 2016 : 10 : Local Level Monitoring Committee to include the land in the Data Bank prepared under the Act and the recommendation made by them to initiate action for restoration of the land to its original position ignoring the entires in the revenue records pertaining to the land are unsustainable. It is also stated in the counter affidavit that the project would not violate the provisions contained in the CRZ Notification.
8. Heard the learned counsel for the petitioners, the learned Government Pleader as also the learned counsel for the ninth respondent.
9. The specific case of the petitioners in the writ petition is that the land of the ninth respondent where they propose to establish the industrial unit is a wetland falling within the purview of the Act and it is on that basis, they seek reliefs in the writ petition. The case of the ninth respondent, on the other hand, is that the land which they own is a garden land and the provisions of the Act would not, therefore, apply to the same. The State Government and the District Collector support the case of the ninth W.P.(c).No.26866 of 2016 : 11 : respondent. All of them rely on the revenue records to substantiate the said case. The fact that the land in question is a garden land in terms of the revenue records is not in dispute. Likewise, the fact that the same is not included in the Data Bank prepared under the Act is also not in dispute. Of course, if there is a mistake in the Data Bank, the same can be rectified even now. As such, the first and foremost question to be decided is as to whether the land of the ninth respondent is one which would fall within the scope of the Act.
10. It is seen that out of the large extent of land held by the predecessors of the ninth respondent, the ninth respondent has purchased only a portion having an extent of 4.0632 hectors comprised in survey numbers 286/1 and 286/2 of Vallivattom village. Exhibit R9(l) is a communication sent by the Convener of the Local Level Monitoring Committee to the representative of the ninth respondent. In the said communication, it is stated that the land is lying as bunds and canals and that there are coconut palms in the W.P.(c).No.26866 of 2016 : 12 : bunds. The ninth respondent as also the State Government admit in their pleadings that there are canals in the land in question. According to them, they are man made canals formed for the purpose of irrigation as per the agricultural practices then prevailing in the area and merely for the reason that there are man made canals in a land, it cannot be treated as wetland. Ext.P19 is the preliminary appraisal of the project of the ninth respondent made by an organisation called Salim Ali foundation at the instance of the petitioners. Ext.P19 being a document prepared at the instance of the petitioners, no credibility can be attached to the same. Nevertheless, it is seen that the stand taken by the organisation referred to above in Ext.P19 preliminary appraisal, is that the land of the ninth respondent was originally a paddy land interspersed with wetlands and later, about five decades back, in order to plant coconut palms, a series of bunds were created towards the periphery of the land by digging out soil from either side. According to them, the wetlands in the area were accordingly altered into a W.P.(c).No.26866 of 2016 : 13 : system of network of canals and bunds, often interconnecting them. In other words, even according to the petitioners, the canals in the land are man made.
11. The Act is one brought into force to conserve the Paddy land and Wetland in the State in order to promote growth in the agricultural sector and to sustain the ecological system. Section 2 (xviii) of the Act defines 'wetland' thus;
(xviii) "wetland" means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers;
As held by this Court in Asma v. District Collector (2015 (1) KLT 30), the wetlands brought under the purview of the Act are natural lands lying between terrestrial and aquatic systems. If one understands the scope of the definition in the context of the Act, It is evident that the word 'systems' contained in the definition refers to ecosystems. In other W.P.(c).No.26866 of 2016 : 14 : words, natural lands lying between terrestrial ecosystems and aquatic ecosystems in the State alone would fall within the ambit of the definition. If this was the legislative intention, the land which was was originally a paddy land, even if it is admitted so, would never fall within the definition of 'wetland' under the Act. The case of the organisation referred to above that the paddy land referred to by them in their report was interspersed by wetlands also would not improve the case of the petitioners in the light of the definition of 'wetland' contained in the Act.
12. Further, provisions contained in Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 ('the Rules') dealing with the preparation of Data Bank under the Act indicate beyond doubt that the Village Officer concerned has to satisfy, based on revenue records, the existence of wetlands and only such wetlands are liable to be included in the Data Bank to be prepared under the Act. Sub-rule (2) of Rule 4 of the Rules reads thus: W.P.(c).No.26866 of 2016 : 15 :
"(2) (1)_^" )I:GdI5^x" H_\U_\aU 5cW_gO^7cN^O fHWUO\a5{ag?Oa" DH`VJ?B{ag?Oa"
U_VFU_UxB{?B_O gAx^L^Cm DOn^y^AaKD_g\Am D^f]MyOaK H?I?_d5N" I^\_gAID^Cm,e%ODm:_ (.) XN_D_Am %G_5^x_DOaU dIgFVfJ H_\U_\aU yUHca y_A^VAa5ZedI5^x" 5cW_gO^7cN^O fHWUO\^O_ gx6fM?aJ_O_GaU MbN_Oaf? U_VF^"VBZ LtfMG U_g\o<m 3K`XV LtfMG 5cW_ 3K`XVAm HWg5IDa" 'D_fa %?_XmE^HJ_W 5cW_ 3K`XV, 3gx^ XmE\Ua"
Ix_gV^G_:nm dIXqaDXmE\" 'gM^Z fHW5cW_Am %HagO^<cN^O fHW UOW &gC^fOKm Ix_gV^G_:na"
DH`VJ?Bf{ X"Lt_:n yUHca y_A^VAa5{af?
%?_XmE^HJ_W U_g\o<m 3K`XV XmE\Ix_gV^GH
H?J_Oa" gL^icfMg?IDa" %dI5^x" Ix_gV^GH H?J_ gL^icfMG U_UxB{bf? %?_XmE^HJ_W, 5cW_ 3K`Xya"
U_g\o<m 3K`Xya" 5b?_ fHWUO\a5{af?Oa" DH`VJ?B {af?Oa" 2xa 5x?m gAx^L^Cm DOn^y^A_ XN_D_Oaf? Ix_7CHOmAm XNVM_gAIDaN^Cm.
(L_) (.) 6mdI5^x" \M_:n 5x?m gAx^L^Cm XN_D_ Ix_gV^G_gAIDa" &UVcfNC_W, Oa5qN^O D_xaJ\a5Z UxagJIDaN^Cm.eXN_D_Oaf?e%G_5^xIx_G_AaU_f\ fHWUO\a5{ag?Oa" DH`VJ?B{af?Oa" dIXqaD 5x?m gAx^L^Cm, H^WCW y_gN^VGm fXXX_Bm /<H_X_gO^, X"
XmE^H MbU_H_gO^7 gL^VgA^, MlNV^dXq I@Hg5dwgN^ (CESS), 'XgK^VgNWX g5x{^ N_WgH^ (IKM), NgxfDC_\a" g5dw/X"XmE^H V^dXq X^gCD_5XmE^IHgN^, W.P.(c).No.26866 of 2016 : 16 : )Id7Y:_dDB{af? %?_XmE^HJ_W DOn^y^A_O_GaU MbI?J_fa XY^OgJ^f? Ix_gV^G_:nm %L_NxbI" HW5_ XN_D_ %"7`5x_gAID^Cm.
.K^W ( )I:GdI5^x" 5x?m gAx^L^Cm DOn^y^AagO^Z )Id7YJ_fa %?_XmE^HJ_W /xUa"
%UX^H" DOn^y^A_O gAx^L^Cm &O_x_AC" %U\"
L_gAIDm."
It is thus evident that the Statute does not contemplate inclusion of any land which is not shown as wetland in the revenue records, as wetland in the Data Bank to be prepared under the Act. The case of the petitioners that the land of the ninth respondent is a wetland coming within the purview the Act is therefore, rejected.
13. The next question is whether the restrictions under the CRZ Notification would apply to the land of the ninth respondent. The third respondent as also the State Government have supported the case of the ninth respondent in this context also contending that the land in question is not covered by the CRZ Notification. The specific case of the petitioners in ground C of the writ petition is that W.P.(c).No.26866 of 2016 : 17 : the proposed activity of the ninth respondent is one prohibited under the CRZ Notification. In order to attract the prohibition, the area in question shall be a notified Coastal Regulation Zone (CRZ). Further, the water bodies concerned shall be water bodies having tidal influence. The following are the five declared Coastal Regulation Zones notified under the CRZ Notification:
"(i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500mts on the landward side along the sea front.
(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance upto which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans (hereinafter referred to as the CZMPs).
Explanation.- For the purposes of this sub-paragraph the expression tidal influenced water bodies means the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, W.P.(c).No.26866 of 2016 : 18 : backwaters, lagoons, ponds connected to the sea or creeks and the like.
(iii) the land area falling between the hazard line and 500mts from HTL on the landward side, in case of seafront and between the hazard line and 100mts line in case of tidal influenced water body the word `hazard line' denotes the line demarcated by Ministry of Environment and Forests (hereinafter referred to as the MoEF) through the Survey of India (hereinafter referred to as the SoI) taking into account tides, waves, sea level rise and shoreline changes.
(iv) land area between HTL and Low Tide Line (hereinafter referred to as the LTL) which will be termed as the intertidal zone.
(v) the water and the bed area between the LTL to the territorial water limit (12 Nm) in case of sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of the bank, of tidal influenced water bodies."
There is nothing on record to indicate that the canals in the land in question are connected to a tidal influenced water body. Even if it is taken that the canals in the land in question are connected to a tidal influenced water body, the restrictions would not apply to the land of the ninth respondent since the said land would not fall within any of W.P.(c).No.26866 of 2016 : 19 : the declared CRZ zones. This aspect is evident from the report filed by the Local Level Monitoring Committee in this matter pursuant to the interim order dated 10/4/2017. In the said report, it is stated that the land of the ninth respondent is situated about 250m. away from the nearest river. The contention of the petitioners that the proposed activity of the ninth of respondent is one prohibited by the CRZ Notification is also, therefore, rejected.
14. The question remaining to be considered is whether the land of the ninth respondent is one which would fall within the scope of 'wetland' covered by the Wetland (Conservation and Management) Rules, 2010 (the Wetland Rules). The definition of 'wetland' contained in the Wetland Rules reads thus;
"wetland" means an area or of marsh, fen, peatland or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water, the depth of which at low tide does not exceed six meters and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and W.P.(c).No.26866 of 2016 : 20 : the zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland covered under the notification of the Government of India in the Ministry of Environment and Forest, S.O.number 114(E) dated the 19th February, 1991 published in the Gazette of India, Extraordinary Part II, Section 3, sub-section (ii) of dated the 20th February, 1991;"
As noted above, even according to the petitioners, the water bodies in the land of the ninth respondent are river channels. River channels are specifically excluded from the definition of 'wetland' contained in the Wetland Rules. Further, protected wetlands under the Wetland Rules are the wetlands referred to in Rule 3 of the Wetland Rules. Rule 3 reads thus :
"3. Protected wetlands - Based on the significance of the functions performed by the wetlands for overall well being of the people and for determining the extent and level of regulation, the following wetlands shall be regulated under these rules, namely:- W.P.(c).No.26866 of 2016 : 21 :
(i) wetlands categorized as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule.
(ii) wetlands in areas that are ecologically sensitive and important, such as, national parks, marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity;
(iii) wetlands recognized as or lying within a UNESCO World Heritage Site;
(iv) high altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred metres with an area equal to or greater than five hectares;
(v) wetlands or wetland complexes below an elevation of two thousand five hundred metres with an area equal to or greater than five hundred hectares.
(vi) any other wetland as so identified by the Authority and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules."
The petitioners have no case that the land of the ninth respondent would fall under any one of the six categories of wetlands covered by Rule 3 of the Wetland Rules. This W.P.(c).No.26866 of 2016 : 22 : question is also, therefore, answered against the petitioners.
The writ petition, in the circumstances, is devoid of merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR JUDGE rsr