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Judgment
K. Ramakrishnan, J
1) The above application has been filed by the applicant challenging Annexure- A1 order dated 23.03.2016 passed by the respondent. The above applicant is the owner of 3.14 hectares in Survey Nos.520/16, 518/8, 817/5-1, 517/5-1-1, 518/11, 508/12, 520/5, 520/1, 520/3, 520/23, 508/20, 520/8, 520/10, 518/10-1, 508/10, 508/18, 517/7-1, 520/24, 518/3-2, 518/3-3, 518/7, 518/2-2, 518/2-1-1, 508/19, 520/25, 518/4, 508/11, 518/9 & 520/9, Attipra Village, Trivandrum Corporation, Trivandrum Taluk and District, in Kerala State. The applicant has proposed to establish a residential project in their property. The land lies adjacent to backwaters called as "Veli Kayal" . In order to obtain CRZ clearance, he made an application on 04.04.2013 before the respondent. The respondent decided on 24.06.2013 by Annexure A-2 order that some portions of the land is reclaimed and therefore it has to be restored and no construction to be carried out. They sent Annexure A-2 order on 12.08.2013 with Photostat copy of the notice No.702/A3/2012/KCZMA/S&T, dated 12.08.2013. According to the applicant, the said order was passed on the basis of a wrong status report prepared by the Centre for Earth Studies, Thiruvananthapuram. So, the applicant sent Annexure A-3 application dated 22.11.2013 to the Centre for Earth Studies, Thiruvananthapuram to correct the report and submit a fresh report. But they sent a reply stating that they did not have time for the same. However, respondent in the mean time, passed Annexure A-4 order dated 03.02.2014 by intimating the Kerala Water Authority and Kerala State Electricity Board to stop the supply of electricity and water supply to the applicant. According to applicant, the respondent was not given power under the Environment (Protection) Act, 1986 to issue such a direction. The applicant has sought time for making a reply to Annexure A-1 notice dated 02.09.2013. But respondent by Annexure A-5 letter dated 10.10.2013 informed the applicant that they will initiate action if the applicant did not send their reply. Thereafter, the applicant gave all necessary documents for CRZ clearance. But the status report was not available. The respondent asked the applicant to obtain CRZ status report from any approved agency. The copy of the letter was dated 14.05.2014. The Government of India has issued Annexure A-7 communication dated 04.01.1999 authorizing certain institutions for demarcating the High Tide Line (HTL). Since the National Centre for Earth Science Studies (NCESS) has not responded to the applicant's request, he approached the Institute of Remote Sensing (IRS), Anna University, Chennai which is also an authorised agency under Annexure A-7 communication. Thereafter, accepting the request made by the applicant, the Institute of Remote Sensing, Anna University, Chennai has inspected the land in question and verified the revenue records and gave their report of June, 2015 (.Annexure A-8). The applicant forwarded the said report to the respondent who placed it in their 68th meeting. However, they refused to accept the same on an arbitrary reason on the ground that it is not as per the guidelines of the Ministry of Environment and Forest and Climate Change (MoEF & CC). The applicant obtained the same under the Right to Information Act, 2005 and the copy of the Minutes dated 20.11.2015 of 68th meeting of the respondent is produced as Annexure A-9. According to the applicant, the reasons given by the respondent authority is not in accordance with law and they are bound to accept the report of the recognized institutions prepared in accordance with law. Merely because two members of the Centre for Earth Science Studies are members in the respondent authority, they cannot reject the report prepared by recognized institutions in accordance with law. The respondent has accepted such reports prepared by the same institutions in several other matters. Thereafter, the respondent has come to the conclusion that the disputed land falls under CRZ-I and CRZ-IV zones which a Non-Development Zone (NDZ) and partly Non-Development Zone which is regulated by the authorities for granting permission in respect of certain activities. The respondent had rejected the application filed by the applicant by their order dated 23.03.2016.
2) In the mean time, the applicant filed O.A.No.210 of 2015 before this Tribunal seeking a direction to be issued to the respondent to consider the status report produced by the applicant and pass appropriate orders and this Tribunal by order dated 04.01.2016 disposed of the application with a direction to the respondent to place the said report for consideration in the next meeting of the CRZ Committee which is to consider the application of the applicant for CRZ clearance based on the report of any one of the accredited agents nominated by the Government of India in the communication dated 04.01.1999. It is further mentioned that if the report of the Institute of Remote Sensing, Anna University is available with the respondent, the same shall be placed before the authority while considering the application. Thereafter, the impugned order has been passed by the respondent which is under challenge in this proceedings.
3) After hearing the learned counsel appearing for the applicant and the respondent, this Tribunal through Video Conferencing considered the application and by order dated 11.03.2019 this Tribunal had referred the matter to a Committee comprising of officials from the National Coastal Zone Management Authority (NCZMA), the Central Pollution Control Board (CPCB) and National Remote Sensing Centre (NRSC), Hyderabad to verify the conflicting reports submitted by the two accredited agencies and submit the report. Accordingly, they have submitted the report.
4) The applicant in the memorandum of application contended that the respondent authority is not justified in relying on the Committee report obtained by them from the Centre for Earth Science Studies (CESS), when the Institute of Remote Sensing (IRS), Anna University, Chennai who is one of the accredited agencies submitted their status report of the CRZ regulations. Further, the documents produced by the applicant will go to show that it was a "Puraiydom' and not a water channel connecting the CRZ Kayal and it is an artificial water channel constructed by the previous owners for their convenience. They also contended that the authorities were not justified in relying on the Google maps to ascertain the real status of the land in question instead of relying on the land realities and satellite map and also the Coastal Zone Management Plan approved by the Ministry of Environment and Forest (MoEF) for the purpose of fixing the High Tide Line (HTL) and Low High Tide Line in order to identify the CRZ zones. So, according to the applicant, the respondent authority was not justified in denying the permission for the project and also directing the restoration of the channel and directing the disconnection of water supply and electricity as has been done in the impugned order.
5) Kerala Coastal Zone Management Authority, the respondent filed their reply statement contending that the reasons stated by the applicant in the application to set aside the order are not sustainable. The CRZ maps prepared by the Institute of Remote Sensing (IRS), Chennai is not in order as they did not follow the guidelines issued by the MoEF in order to prepare the CRZ maps and it was not reflecting the ground realities. The inter tidal zones and non-development zones marked by IRS and another authorized agency of Ministry of Environment, Forest and Climate Change (MoEF & CC), Government of India i.e., National Centre for Earth Science Studies (NCESS) varies considerably. The authority has received the maps prepared by both the agencies and correctly came to the conclusion that IRS had failed to prepare the maps in accordance with the approved Coastal Zone Management Plan of the State approved by MoEF. The proposed land is closed to Veli Akkulam lake and Veli Kayal which have tidal influence from Sea. There are connected canals and a water body inside the plot which are party of Coastal Regulation Zone. The project area had few interconnected canals and a water body within the site which were connected to Akkulam lake through an opening. Akkulam lake and the water body including the interconnected canals has tidal influence from Sea. The NCESS is also an approved agency of MoEF & CC. During their visit on 29th June 2013 they found that a major part of the channels/canals and the water body have been filled up and reclaimed. The reclaimed areas are CRZ III and CRZ IV. The respondent authority is vested with power under Section 5 of the Environment (Protection) Act, 1986 to protect environment and reduce the further deterioration of environment and ecology of the area. The applicant had submitted the application without supporting documents as laid down in the CRZ Notification, 2011. The following defects were noted by the respondent authority in the status report prepared by IRS, Chennai which is reiterated as follows:
(a) The inter tidal zones CRZ I(A) area and Non development zones are not marked properly.
(b) The ground realities including the water body within the site is not shown in the CRZ map. The water body is in CRZ IV area.
(c) The HTL shown is also wrong as it is marked on the survey plot boundary and not on actual HTL of the tidal influenced water body.
6) So, according to the respondent, the reason given by the authorities is perfectly justified and accordingly came to the conclusion that
(i) the accepted CRZ map of the location shows that the proposed site is a coconut lagoon which falls within NDZ of CRZ I and CRZ IV.
The CRZ I is the intertidal area and CRZ IV is water body with severe influx and outflow of saline water during High Tide and Low Tide.
(ii)The construction is 50 metre away from HTL of the water body. (iii)The HTL marked by IRS in their reports is not supporting the ground truth realities as evidenced in various time series images of Google Earth. The intertidal zone and water bodies present in the proposed site is not depicted in IRS map. Also it seems that the IRS map is not drawn strictly following the MoEF guidelines.
(iv) Majority of the survey numbers of the site listed in the Application No.201 of 2015 is not covered in the Revenue Document presented before the authority as proof of landed property.
(v) Cadastral Map produced by the applicant does not demarcate the different nature of the site like water body, agriculture land, canals etc.,
(vi) Based on the field observation documents produced by the applicant and Google Earth Imagery from 2003 onwards, the authority is fully convinced that the proposed construction is within the Non-Development Zone of CRZ and is in violation of CRZ Notification, 2011.
7) They also mentioned that the Hon'ble Supreme Court in the judgment in S.L.P. (Civil) Nos. 24390-24391 of 2013 had clearly stated that Satellite imagery is also, in our view, one of the best scientific indicators to know when the construction effected in violation of the CRZ Notification 2011 published in 2015 by State Government. Public hearing was also conducted. The Coastal Zone Management Plan (CZMP) also shows the area as CRZ. The draft CZMP is not available in the Government Website and the Coastal Zone Management Plan (CZMP) will be published after approval of MoEF & CC, Government of India. They prayed for dismissal of the application.
8) Heard Mr. P.B. Sahasranaman, the learned counsel appearing for the applicant and Mrs. Rema Smirithi, the learned counsel appearing for the respondent.
9) Learned counsel appearing for the applicant reiterated the contentions raised by him in the Memorandum of Application and also submitted that the National Centre for Earth Science Studies (NCESS) have merely relied on the Google Maps for the purpose of identifying the status report of the land in question and came to the conclusion that there exists water channels and canals. He also argued that when there is a boundary of a private property separating the coastal zone having High Tide Line (HTL) effect, then 50 meter distance have to be calculated not from the imaginary boundary, but from the natural ground boundary of the private property. Further, when the Government itself had some protected measure, protecting the land from tidal effect of the Sea, then the Non-Development Zone has to be fixed from the protection wall towards the land side of the property which has not been done in this case. Further, the documents produced by the applicant will go to show that as per the revenue records it is "Puraiydom" and not river poramboke or kayal poramboke. The canals found inside the property are not natural canals but only an artificial canal established by the previous owners for collecting water for their purpose. Further, the basic document ought to have been relied on by the authority in fixing for super imposing the High Tide Line on land that should have been in the Coastal Zone Management Plan (CZMP), 1995. It was approved by the MoEF & CC and was in force at the relevant time and not the Coastal Zone Management Plan (CZMP) prepared on the basis of CRZ Notification, 2011. It has not been approved by the Government so far. He had also relied on the decisions in Ansari Komath vs. State of Kerala (2011 (1) KLT 1043), M. Nizamudeen vs. Chemplast Sanmar Limited, (2010) 4 SCC 240, and Fair Log Warehousing and Trading (P) Ltd. vs. Kerala Coastal Zone Management Authority, Application No.286 of 2014, NGT (SZ) .
10) On the other hand, learned counsel appearing for the respondent submitted that the authority has properly considered all the aspects and was justified in rejecting the plan prepared by IRS, Chennai for valid reasons which has been explained by NCESS and also by the Committee constituted by this Tribunal. When the report of NCESS and joint committee appointed by this Tribunal are concurrent in nature, there is nothing to interfere with the conclusion arrived by the respondent authority. She also argued that there is no difference in the Coastal Zone Management Plan (CZMP), 1995 and the present plan prepared by the NCESS appointed by respondent. Hence, she prayed for dismissal of the application.
11) The points that arise for consideration are (i) whether the respondent authority was justified in relying on the report submitted by NCESS without relying on the plan prepared by IRS, Chennai.
(ii) Whether the respondent authority was justified in coming to the conclusion that the property of the applicant is within the CRZ zone and the reclamation done was illegal and
(iii) Whether it was justified in giving direction to remove the reclamation and restore it to the original position by virtue of the impugned order.
12) Admittedly, the applicant's property is adjacent to "Veli Kayal and Akkulam lake and it is also in a way admitted that portion of the property is in CRZ-III and construction can be possible only with the permission of the Coastal Zone Management Authority (CZMA). The question is as to whether it is in the area of Non-Development Zone which is totally prohibited namely within 100 meters from the Hide Tide Line (HTL) or it is in the regulated zone of 100 meters to 500 meters.
13) It is an admitted fact that the applicant filed an application for permission under the provisions of the Coastal Regulation Zone (CRZ) Notification 2011 in the year 2013. It is also an admitted fact that the authorities in the earlier meeting found that the particulars given in the location map prepared by NCESS earlier on behalf of the applicant is not correct and they wanted certain clarification and on that basis they approached NCESS for rectification of the report. But since they did not respond to their request, the same was done by the applicant through IRS, Chennai and thereafter submitted the present application. It is also seen from the plan submitted by the applicant the HTL was shown as straight line and the proposed construction is beyond 100 meters from the HTL. This was not accepted by the Coastal Zone Management Authority (CZMA) on the basis of the opinion given by NCESS, subsequently obtained by the respondent. According to the applicant, the respondent should have taken the Coastal Zone Management Plan, 1995 approved by MoEF as the basic document and should not have relied on the Google maps of recent times for the purpose coming to the conclusion that there is a water body inside the property as according to them the water body is a man made one and the property is noted as "Puraiydom" in the revenue records.
14) It may be mentioned here that most of the Survey Numbers mentioned by the applicant did not find a place in the revenue adangal extract produced by the applicant. This will not show the correct nature of the land of these Survey Numbers and so that cannot be relied on. But, learned counsel appearing for the applicant submitted that those things were explained to IRS, Chennai. There is no document produced by the applicant to convince this Tribunal as to how this aspect has been established by the applicant before the IRS, Chennai to come to the conclusion that the entire property is "Puraiydom" and not a wet land or paddy field at the relevant time and these modification or reclamations have been done prior to 1991 and it was a natural bund or protection boundary which was in existence to prevent the tidal influx of the lake or kayal into their property.
15) Even assuming that the water channels are passing through the property of the applicant and if it is a creation of nature for the purpose of reducing the tidal influx during season from kayal or the lake, then it can only be treated as creek or water channel which will fall within the CRZ regulation as it is having same effect on land at the time of tidal influx during season.
16) In the decision reported in Fair Log Warehousing and Trading (P) Ltd. vs. Kerala Coastal Zone Management Authority, (Original Application No.286 of 2014, NGT (SZ) dated 15.09.2015), it has been held that the demarcation of High Tide Line (HTL) in respect of that case on the basis of Coastal Zone Management Plan (CZMP), 1995 approved by the MoEF & CC has to be accepted and the Coastal Zone Management Authority (CZMA) has no right to defeat the same on the basis of the opinion given by one of the Expert Members of the committee evolved on the basis of their personal inspection. The Tribunal has relied on the decision reported in M. Nizamudeen vs. Chemplast Sanmar Limited, (2010) 4 SCC 240, where the Apex Court has considered the question as to the basis for fixing the HTL and extracted that portion as follows:
" It is perfectly true that at the time of preparation and approval of the 1996 Plan, the amendments of 29.12.2998 and 21.5.2002 in the 1991 Notification had not seen the light of the day and the declaration made in first part that the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from HTL and the land between LTL and HTL are CRZ was kept in view but in the absence of any modification carried out thereafter, the 1996 Plan remains operative. The authorities authorised to demarcate HTL, we are afraid cannot override the plan prepared and approved under Para 3 (3) (i) as the said paragraph leaves no manner of doubt that Coastal Zone Manaement Plan prepared by the coastal State (or for that matter the State Coastal Zone Management Authority) and duly approved by the MoEF is the relevant plan for identification and classification of CRZ areas. The plan prepared by NIO thus, cannot be said to have superseded the 1996 plan for the Cuddalore coastal stretch.
More so, while giving approval on 27.9.1996 to the 1996 Plan, the MoEF appended, inter alia, a condition that the Government of Tamil Nadu would not make any change in the approved categorisation of CRZ area without its prior approval. Seen thus, the 1996 Plan for the purposes of demarcation and classification of CRZ area in the State of Tamil Nadu has to be treated as final as it must be, that Uppanar River and its banks at the relevant place where the pipelines laid by Chemplast pass do not fall under CRZ-III area as per the 1996 Plan and no environmental clearance is needed for such pipelines. The stand of the MoEF is, which seems to us to be correct, that they have granted permission to the onshore pipelines insofar as these pass through CRZ abutting the sea i.e., 500 metres from HTL and no clearance has been granted as it was not required for laying of pipelines under Uppanar River."
17) It is also held in the decision reported in Indian Council for Enviro-Legal Action vs. Union of India (1996) 5 SCC 281), by the Hon'ble Supreme Court that the decision of the MoEF & CC in respect of finalisation of Coastal Zone Management Plan (CZMP) is final and it is binding and that should not be changed by the Coastal Zone Management Authority on their whims and fancies on the basis of certain opinion given by their own members without getting it modified in the manner known to law.
18) In the decision reported in In Re. Construction of Part at Noida Near Okhia Bird Sanctuary Anand Arya and another T.N. Godavarman Thirumulpad vs Union of India and others by judgment dated 03.12.2010, it is observed that " a satellite image may not always reveal the complete story and the picture that emerges from the Government records and how things appear on the ground. There is no reason not to give due credence to the revenue records since they pertain to a time when the impugned project was not even in anyone's imagination and its proponents were no where on the scene. The satellite images tell us how things stand at the time the images were taken whether or not the satellite images can ascertain the different species of trees, their age and the girth of their trunks, etc., But what is on record does not give us all that information. What the satellite images tell us is that in October, 2006 there was thin to moderately dense tree cover over about half of the project site. That will not give any indication regarding the property at the time when the Forest Conservation Act was passed. "
19) In the decision reported in Indian Council for Enviro-Legal Action vs. Union of India (1996) 5 SCC 281), the Apex Court held that "the decision by the MoEF & CC in respect of finalisation of the Coastal Zone Management Authority Plan shall be final and binding."
20) The same view has been reiterated in the decision reported in M. Nizamudeen vs. Chemplast Sanmar Limited, (2010) 4 SCC 240. In the decision reported in Ansari Komath vs. State of Kerala (2011 (1) KLT 1043), it has been held that even if Central Government has delegated its power to State Government, such delegation does not denude authority of Central Government to initiate action. That was a case where certain industries were established in CRZ-I area where mangrove plantations exists and permission was granted by the State Coastal Zone Management Authority. However, that was interfered by the Central Government and action was directed to be taken for violation of CRZ-I zonal regulation.
21) In the decision reported in Secretary, Kerala State Coastal Zone Management Authority Vs. DLF Universal Limited (2018) 2 SCC, 203), it has been held that when the revenue records does not show the existence of any water body and the Coastal Zone Management Plan is also at difference, then relying on certain other materials, Court cannot come to the conclusion that it was a Coastal Regulation Zone.
22) In the decision reported in Institute of Social Welfare Vs. State (1996 KHC 143), the Division Bench of the Hon'ble High Court of Kerala held that in respect of land reclamation, the area of prohibition will only include such land reclamation which would disturb the natural course of sea water and in that case there was no document to show that the area where reclamation was done was having any tidal effect and came to the conclusion that the reclamation in that kayal area which will not affect the tidal influx of the kayal or the sea, the reclamation cannot said to be prohibitory in nature. There is no dispute regarding the preposition laid down in the above decisions.
23) In the recent decision reported in Kerala State Coastal Zone Management Authority Vs. State of Kerala and others 2019 (3) KHC 9 (SC), it has been held that the plan that has to be considered is CZMP of 1996 approved by MoEF & CC for the purpose of locating the proposed construction in the Map or to find out whether it falls under CRZ-III Zone where area of 200 meters from High Tide Line is No Development Zone and the construction if made was illegal and it is wholly impermissible to carry out construction within the prohibited area.
It is further held in the same decision that construction in violation of Coastal Zone Regulations are not to be viewed lightly and he who breaches its terms does so at his own peril."
24) The dictum report in P. Vasudevn and another Vs. Centre for Earth Science Studies, Represented by its Director, Aakkulam, Thiruvananthapuram in W.P.(C).No. 35115 of 2008 (E) is not applicable to the facts of this case. That was a case where there is a natural protected boundary to protect land from the high tide of kayal or water body, in existence long time back and in such circumstances, it is observed by the Hon'ble High Court that boundary has to be taken for fixing the distance from High Tide Line. It was a case from Alapuzha where the land lies in lower level from sea level and there are protected walls in existence since long time to protect the private land from the tidal effect. That was not the case here.
25) In this case, the basic plan to be relied on is the Coastal Zone Management Plan (CZMP) of 1995 as it was prepared on the basis of 1991 Notification, though the classification has to be considered on the basis of the regulation contemplated in Coastal Regulation Zone Notification, 2011, as the law applicable is that of 2011 Notification and not 1991 Notification, though the plan that has to be considered is of 1995 plan as a new plan as per 2011 Notification has not been finalized at that time.
26) It may be mentioned here that it is an admitted fact that earlier the applicant had filed an application for clearance for their project admitting the fact that a portion of the property in CRZ-III zone which requires permission from the authorities. It is also an admitted fact that earlier they produced plan prepared by NCESS. But the Coastal Zone Management Authority (CZMA) had directed the applicant to get some clarification regarding the status plan of the Coastal Zone from the respective institution. Since the said institution was not available for rectification, the applicant approached IRS, Chennai and submitted the present application along with the plan prepared by IRS, Chennai and the Coastal Zone Management Authority (CZMA) on the basis of the status report by NCESS subsequently obtained on the basis of their request came to the conclusion that the plan submitted by IRS, Chennai cannot be relied on for the following reasons:
"1. The accepted CRZ map of the location shows that the proposed site is a coconut logoon which falls within NDZ of CRZ-I & IV. The CRZ-I is the intertidal area and CRZ-IV is water body with severe influx and outflow of saline water during High Tide and Low Tide.
The construction is 50 metre away from the HTL of the water body.
The HTL marked by IRS in their reports is not supporting the ground truth realities as evidenced in various time series imaes of Google Earth. The intertidal zone and water bodies present in the proposed site is not depicted in IRS map. Also it seems that the IRS map is not drawn strictly following MoEF guidelines.
Majority of the survey numbers of the site listed in the Application No.201 of 2015 is not covered in the Revenue Document presented in the Authority as proof of landed property.
The Cadastral Map produced by the applicant does not demarcate the different nature of the site like water body, agriculture land, canals etc.,
Based on the field observations documents produced by the applicant and Google Earth Imagery from 2003 onwards, the Authority is fully convinced that the proposed construction is within the Non-Development Zone of CRZ and is in violations of CRZ Notification, 2011."
27) This was challenged by the applicant by filing the application. Since, NCESS as well as IRS, Chennai are both accredited agencies for preparing the CRZ status plan and since there was some discrepancy in respect of these two reports, this Tribunal by order dated 11.03.2019 constituted a Committee comprising National Coastal Zone Management Authority (NCZMA), the Central Pollution Control Board and National Remote Sensing Centre (NRSC), Hyderabad to consider both the reports and give their comments on the same. Accordingly, the Committee has submitted their report with following observations:
(a) " In the Order dated 24.08.2019 in PIL. W.P.No.26 of 2017 in the Hon'ble High Court of Bombay at Goa, in para 68, it is stated, "The High Tide Line has been defined rxplicity under the notification governing the Coastal Regulation Zone. The Division Bench has already referred to the concept of Coastal Zone Regulation and the definition, observing thus: "17... The term High Tide Line means " the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined in the absence of actual data, by a line of oil or scum along shore objects are more or less continuous deposit of fine shell or debris on the foreshore or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm" Hence, the High Tide Line is the line of intersection of land with the water surface. In such circumstances, the High Tide Line will be the line on the land up to where the highest high tide reaches at spring tide. This the position of the High Tide Line in lw as per the Notification is recognized by the Division Bench."
(b) In the Order dated 24.08.2018 in PIL. W.P.No.26 of 2017 in the Hon'ble High Court of Bombay at Goa, in para 35, the Hon'ble High Court has observed, "The High Tide Line will have to be identified as per the provisions of the Act and the CRZ Notification of 1991"
(c) Further, in the order dated 24.08.2018 in PIL. W.P.No.26 of 2017 in the Hon'ble High Court of Bombay at Goa, in para 63, the Hon'ble High Court has observed " The Petitioner has rightly pointed out that the Division Bench has not used the words 'drawing' the High Tide Line in the operative portion of the order, but identifying the High Tide Line. The use of the word 'identifying'is deliberate. The Division Bench meant that the High Tide Line exists and it was only to be identified in front of the Hotel".
(d) It is pertinent to note that the Hon'ble High Court of Bombay at Goa has not said that the High Tide Line should be copied from the Coastal Zone Management Plan (CZMP). The Hon'ble High Court has observed that, the high tide line already exists and it has to be identified on the ground.
(e) This is the crux of the entire issue before the Committee. The order of the Hon'ble High Court of Bombay at Goa clearly directing the Authorities as to how to identify the High Tide Line clearly addresses and resolves the present issue in the Original Application No.113/2016 (SZ) filed by M/s. Heera Kerla Developers Pvt. Ltd. Applicant, before the Hon'ble NGT, Principal Bench, New Delhi.
(f) The year 1991 referred to in para 35 of the Order dated 24.08.2018 in PIL. W.P.No.26 of 2017 in the Hon'ble High Court of Bombay at Goa, refers to the year in which the cause of action in the case arose and the year of the corresponding CRZ Notification 1991. In the present case in the Original Application No.113/2016 (SZ) filed by M/s. Heera Kerala Developers Pvt. Ltd., Applicant, before the Hon'ble NGT Principal Bench, New Delhi, the cause of action arose in the year 2012 when the Respondent (Kerala Coastal Management Authority) received a complaint from one Shri R. Bhadran, regarding 'CRZ violation and Wetlands (Conservation and Management) Rules 2010 in Akkulam area' (Annex-3) by M/s. Heera Kerala Developers Pvt. Ltd., Applicant.
(g) Thus, CRZ Notification 2011 would apply in the present case and as per Order dated 24.08.2018 in PIL.W.P.No.26 of 2017 in the Hon'ble High Court of Bombay and Goa, the High Tide Line had to be identified as per the provisions of the Act and the CRZ Notification of 2011.
(h) From Table-1 above it is clear that in the status report and the CRZ map prepared by IRS, Chennai, the HTL has not been correctly identified during the field survey. The HTL has been Copied from the CZMP of 1996. This is not as per CRZ Notification2011 and not as per the orders of the High Court of Bombay at Goa.
(i) Copying of HTL from the CZMP of 1996 and showing the same on a CRZ map of 1/4000 scale has the following serious deficiencies:
(1) It is not as per the guidelines of CRZ Notification 2011 (section 4.2 of the CRZ Notification 2011, under 'Procedure for clearance of permissible activities') HTL has to be demarcated based on coastal geomorphological features on 1:4000 scale.
(2) It is not as per the Order dated 24.08.2018 in PIL.W.P.No. 26 of 2017 passed by the Hon'ble High Court of Bombay at Goa, explained in the forgoing para 3.2. The Hon'ble High Court has observed that, the high tide line already exists and it has to be identified on the ground.
(3) Copying HTL from 1:25000 scale map to 1:4000 scale map is technically wrong and would lead to totally incorrect and inaccurate results. It is like copying the location of a city (e.g) Chennai) from the map of India and preparing the Chennai city map Chennai city map has to be prepared afresh by field surveys.
(4) IRS, Chennai had done the required field surveys at site but copied the HTL from the CZMP of 1996.
(5) Copying HTL from a small-scale map (1/25000) to a large-scale map (1/4000) is against the very principles of Surveying, Mapping & Cartography.
(j) The CRZ map prepared by IRS, Chennai is not as per the guidelines of CRZ Notification 2011 and the CRZ map prepared by CESS Trivandrum is as per the guidelines of CRZ Notification 2011.
(k) Thus, the southern part of the land/ project site in question of the Applicant falls within the prohibited zone (CRZ-III/NDZ) as per the correct map prepared by CESS Trivandrum. The exact locations and distances of that part of the land/ project site in question of the Applicant can be accurately measured from the 1/4000 scale CRZ map prepared by CESS Trivandrum. Even in Form-I submitted by the applicant to KCZMA vide letter dated 04/04/2013 (Annex-5), the applicant himself hs admitted in item numbers 1.2 and 1.3 that the part of the project area is in CRZ-III.
(l) However, the Applicant is at liberty to submit fresh application to the Respondent for clearances invoking the new CRZ Notification 2019, which provides for relaxation in setback distance from the HTL as well as other relaxations, which the project proponents can avail of. Further, para4, page 7 of the CRZ status report prepared by CESS, Trivandrum states that there is a possibility that CRZ-III categorization of Applicant's land/ project area in question may be recategorized as CRZ-II, which also provides for further relaxations. "
28) It is seen from the Committee's report that they have not only relied on the satellite image of the year 2011 and thereafter, but they have related back to the Google Images from 1989 to 2019, Satellite image of 1990 and Google Images 2003, 2011, 2013 and 2014 to 2019 and came to the conclusion that the water body and the channels are in existence in the property of the applicant even prior to 1991 and any reclamation made could only be subsequent to that which is prohibited under 1991 Notification. So, it cannot be said that the Committee has come to the conclusion mainly based on the Google Image of recent origin but they related back to the position of Satellite Image from 1987 onwards and based on that observations came to the conclusion that the location map and the High Tide Line (HTL) fixed by IRS, Chennai could not be the correct location. Further, they also relied on the CZM plan approved by MoEF & CC in 1996 for the purpose of locating the High Tide Line (HTL) which has got an irregular shape and if that shape is taken, then the properly will be within the prohibited distance and no construction or reclamation can be possible.
29) So under such circumstances, the submission made by the learned counsel appearing for the applicant that the Committee as well as the Coastal Zone Management Authority (CZMA) were not justified in disregarding the status report and plan submitted by IRS, Chennai in rejecting their application and order for restoration of the property which was said to have been illegally reclaimed cannot be accepted. We do not find any reason to differ from the finding arrived at by the Expert Committee appointed by this Tribunal and also the observations made by the respondent, Coastal Zone Management Authority and passing the impugned order to set aside the same as requested by the applicant. So, we confirm the order passed by the respondent authority and we hold that the application lacks of merit and the same is liable to be dismissed.
30) In the result, the application is dismissed. No cost.