Union Territory of Lakshadweep & Ors. Vs. Seashells Beach Resort & Ors.
EmailAppeal: Civil Appeal Nos. 4625-4626 of 2012
[Arising out of SLP (Civil) Nos. 5967-5968 of 2012]
[From the Judgement and Order dated 16.01.2012 of the High Court of Kerala at Ernakulam in W.P. No. 34398 of 2011 and Writ Appeal No. 68 of 2011]
[Arising out of SLP (Civil) Nos. 5967-5968 of 2012]
[From the Judgement and Order dated 16.01.2012 of the High Court of Kerala at Ernakulam in W.P. No. 34398 of 2011 and Writ Appeal No. 68 of 2011]
Petitioner: Union Territory of Lakshadweep & Ors.
Respondent: Seashells Beach Resort & Ors.
Apeal: Civil Appeal Nos. 4625-4626 of 2012
[Arising out of SLP (Civil) Nos. 5967-5968 of 2012]
[From the Judgement and Order dated 16.01.2012 of the High Court of Kerala at Ernakulam in W.P. No. 34398 of 2011 and Writ Appeal No. 68 of 2011]
[Arising out of SLP (Civil) Nos. 5967-5968 of 2012]
[From the Judgement and Order dated 16.01.2012 of the High Court of Kerala at Ernakulam in W.P. No. 34398 of 2011 and Writ Appeal No. 68 of 2011]
Judges: T.S. Thakur & Gyan Sudha Misra, JJ.
Date of Judgment: May 11, 2012
Appearances:
Appearances
Mr. H.P. Rawal, ASG, Mr. Ashok Bhan, Mr. V. Giri, Senior Advocates, Mr. D.S. Mahra, Mr. S.S. Rawat, Mr. Harsh N. Parekh, Mr. Dayan Krishnan, Mr. Gautam Narayan, Mr. Tara Chandra Sharma, Mr. B. Krishna Prasad, Mr. P.B. Krishnan, Mr. Sreegesh M.K., Mr. P.B. Subramanyan, Mr. A. Venayagam Balan, Advocates, with them for the appearing parties.
Mr. H.P. Rawal, ASG, Mr. Ashok Bhan, Mr. V. Giri, Senior Advocates, Mr. D.S. Mahra, Mr. S.S. Rawat, Mr. Harsh N. Parekh, Mr. Dayan Krishnan, Mr. Gautam Narayan, Mr. Tara Chandra Sharma, Mr. B. Krishna Prasad, Mr. P.B. Krishnan, Mr. Sreegesh M.K., Mr. P.B. Subramanyan, Mr. A. Venayagam Balan, Advocates, with them for the appearing parties.
Head Note:
ENVIRONMENT
Constitution of India, 1950
Articles 14, 16, 226 – Environment (Protection) Act, 1986, Section 3(3) – Notifications dated 19.02.1991 and 06.01.2011 – Coastal Zone Management Plan, 1997 – Development of tourist resort – Development/construction at 28 meters from High Tide line – Requirement of environmental clearance from Department of Environment and Forests, Land use Diversion, Clearance from Pollution Control Committee and Zonal Coastal Management Committee – None obtained – Land use diversion certificate misused – Permission from High Court to run resort as interim relief – If justified. Held that the orders passed by High Court, without considering notification dated 06.01.2011 is legally unsustainable.
Constitution of India, 1950
Articles 14, 16, 226 – Environment (Protection) Act, 1986, Section 3(3) – Notifications dated 19.02.1991 and 06.01.2011 – Coastal Zone Management Plan, 1997 – Development of tourist resort – Development/construction at 28 meters from High Tide line – Requirement of environmental clearance from Department of Environment and Forests, Land use Diversion, Clearance from Pollution Control Committee and Zonal Coastal Management Committee – None obtained – Land use diversion certificate misused – Permission from High Court to run resort as interim relief – If justified. Held that the orders passed by High Court, without considering notification dated 06.01.2011 is legally unsustainable.
Articles 14, 16, 226 – Environment (Protection) Act, 1986, Section 3(3) – Notifications dated 19.02.1991 and 06.01.2011 – Coastal Zone Management Plan, 1997 – Development of tourist resort – Violation of CRZ norms, land use and no environmental clearance – Even diversion of land use not obtained – Construction of Cottages at 28 meters of High Tide line – What could be the possible solution. Held that an expert Committee be constituted to look into matter and to provide a framework of future development also.
Articles 14, 16, 226 – Environment (Protection) Act, 1986, Section 3(3) – Notifications dated 19.02.1991 and 06.01.2011 – Coastal Zone Management Plan, 1997 – Development of tourist resort – Violation of CRZ norms – Misuse of land use diversion certificate – Allegations and counter allegations. Held that the issue can be looked into by Expert Committee not only in relation to this resort but also other resorts and commercial establishments. Committee appointed and guidelines given.
Held:
The High Court has not even referred to the Notification dated 6th January, 2011 issued by the Government under Section 3 of the Environment (Protection) Act, 1986 or the effect thereof on the establishment of the project that does not so far have a final clearance and completion certificate from the competent authority and is being accused of serious violations. The High Courts order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ Court. The order passed by the High Court is legally unsustainable. (Para 17)
Notification dated 6th January, 2011 issued by the Government of India under Section 3 of the Environment (Protection) Act, 1986 read with sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, inter alia, provides for the preparation of Integrated Islands Management Plans for each of the islands in Lakshadweep. These IIMPs have to specify all the existing and proposed developments, conservation and preservation schemes, dwelling units including dwelling infrastructure projects such as, schools, markets, hospitals, public facilities and the like. The notification further provides that development activities in the island shall be included in the IIMPs in accordance with the rules and regulations and building bye-laws of local town and country planning for the time being in force in the islands and that all activities in the islands including the aquatic area shall be regulated by the Lakshadweep Islands Administration on the basis of the IIMPs. (Para 21)
Notification also enumerates the activities that shall be prohibited on the islands including destruction of corals, mining of sand in and around coral areas, construction of shore protection works, disposal of untreated sewage or effluents, and disposal of solid wastes including fly ash, industrial waste, medical waste etc. It also permits setting up of new industries and expansion of existing industries except those directly related to waterfront or directly needing offshore facilities. (Para 21)
We have no difficulty in directing the constitution of an Expert Committee with a request to it to look into the matters set out in the terms of reference which we are setting out herein below. The Lakshadweep Administration has proposed that the Committee could comprise of four expert members from different fields named in the memo filed by the Administration under the chairmanship of Justice R.V. Raveendran, former Judge of Supreme Court of India. (Para 23)
The setting up of the Committee will not only provide expert assistance to the Lakshadweep Administration and eventually the Government of India in the preparation and approval of the IIMPs for the islands in question but also expedite the entire process for the general benefit of the people living on the islands as also for those visiting the place as tourists. Once the IIMPs are in place, all development activities will have to be regulated in accordance with the said plans which will make it so much easy for the Administration to grant approvals and clearances for activities that are permissible under such plans for the areas reserved for the same. It will also provide for a broad framework for the future development of the islands without disturbing the ecological or environmental balance and affecting the beauty of the area. (Para 23)
The alleged violation of CRZ and the land use diversion certificate by the respondent would require inspection and verification of facts on the spot apart from examination of the relevant record concerning the issue of the permission and the alleged violation of the conditions subject to which they were issued. That exercise can, in our opinion, be more effectively undertaken by the Expert Committee not only in relation to the respondent but also in relation to all other resorts and commercial establishments being run on the islands. (Para 24)
Allegations and counter-allegations made by the parties against each other in regard to the violation of the CRZ and other irregularities in the matter of establishment and/or running of resorts and home stay and grant of permits to tourists visiting the islands can also be examined by the Expert Committee and action, if any, considered appropriate by it recommended in the Report to be submitted to this Court. (Para 25)
The Committee shall examine allegations regarding violation of the CRZ and other irregularities committed by the respondent or by other individuals/entities in relation to establishment and/or running resorts and home stays in the islands. Allegations regarding irregularities in the matter of grant of permits to the tourists visiting the islands as also in regard to permissions granted to the resort owners/home stays to operate on the islands shall also be examined by the Committee. So, also the Committee shall be free to examine whether any official of the Lakshadweep Administration has been guilty of any act of omission or commission in the discharge of his official duties and if considered necessary recommend action against such officials. (Para 29)
JUDGEMENT:
ORDER
1. Leave granted.
2. These appeals have been filed by the Union Territory of Lakshadweep against an order dated 16th January, 2012 passed by the High Court of Kerala at Ernakulam whereby the High Court has directed the appellants to process the applications made by respondent No.1-Seashells Beach Resort, hereinafter referred to as respondent, for all clearances including finalisation of CRZ norms and pending final decision on the same, to permit the respondent to run the resort established by it at Agatti. The High Court has further directed the appellants to issue travel permits and entry passes required by tourists making use of the accommodation in the said resort.
3. Lakshadweep Administration finds fault with the direction issued by the High Court on several grounds including the ground that respondent-writ petitioner before the High Court had no licence from the Tourism Department and no clearance from the Coastal Zone Regulatory Authority or the Pollution Control Board to run the resort established by it. It is alleged that the direction issued by the High Court amounts to permitting the respondent to run a resort sans legal permission and authority and without any check, control or regulation regarding its affairs. The Administration also points out that diversion of land use qua different survey numbers in Agatti was obtained by one of the partners of the respondent for construction of dwelling houses and not for establishing a commercial establishment like a tourist resort and that respondent No.1 had misused the said permission by constructing a resort in the No Development Zone (NDZ) falling within 50 metres of High Tide Line and thereby violated the CRZ norms. The respondent has, according to the Administration, constructed cottage at a distance of 28 metres from the High Tide Line on the western side of the sea and thus violated the terms of the permission given to it. The Administration further alleges that it had never permitted the respondent to run a resort and that it had on the basis of a permission obtained from the local panchayat, which had no authority to issue such permission, started bringing tourists, including foreign tourists, to the resort on the pretext that the accommodation was in the nature of home stay. The Administration asserts that neither the Union Territory of Lakshadweep nor the Government of India have taken any policy decision regarding permitting home stay arrangements on the Lakshadweep islands and that the High Court had completely overlooked the fact that all development in relation to the said islands shall have to be in accordance with the Integrated Island Management Plan and the CRZ norms. The Administration also relies upon a Notification dated 6th January, 2011 issued by the Government of India in exercise of its powers under Section 3 of the Environment (Protection) Act, 1986 which notification is intended to promote conservation and protection of the Islands unique environment and its marine area and to promote development through a sustainable integrated management plan based on scientific principles, taking into account the vulnerability of the coast to natural hazards.
4. When these petitions came before us for preliminary hearing on 2nd March 2012, this Court while issuing notice to the respondent and staying the operation of the impugned order passed by the High Court, directed the petitioner and respondent No.2 to furnish the following information on affidavit:
1) Whether the proposed Integrated Island Management Plan has been finalised for the Union Territory of Lakshadweep and whether CRZ for the said territory has been notified?
2) If the CRZ has not been notified or the plan has not been finalised, the reasons for delay and the stage at which the matter rests at present and the particulars of the authority with whom the matter is pending.
3) The total number of the applications received by the Union Territory of Lakshadweep for setting up of resorts and stage at which the said applications are pending/being processed.
4) The nature and extent of the violations which the administration of the Union Territory of Lakshadweep have noticed in the proposed resorts and the action, if any, taken for removal of such violations. If no action has been taken/initiated for removal of the violation, the reasons for the failure of the authorities to do so and the persons responsible for the omission/inaction.
5) The particulars of unauthorised resorts being operated in any part of the Union Territory of the Lakshadweep and the action proposed to be taken for closure/removal of such resorts.
5. In compliance with the above directions, the Administrator of the UT of Lakshadweep has filed an affidavit, inter-alia, stating:
i) The proposed Integrated Island Management Plan (IIMP) for Agatti Island in pursuance of the notification dated 6th January, 2011 of Ministry of Environment and Forests has not been finalized as yet and is under finalization with the Administration of Union Territory of Lakshadweep. The Coastal Regulation Zone (CRZ) Notification for the whole country including the UT of Lakshadweep Island has been notified by the Ministry of Environment & Forests, Government of India vide CRZ Notification S.O. No. 114(E) dated 19th February, 1991.
ii) In exercise of the powers conferred under Section 3(3)(i) and 3(3)(ii) of CRZ Notification dated 19th February, 1991 a Coastal Zone Management Plan for UT of Lakshadweep was also notified by the Administration on 22nd August, 1997 which is in force till date and shall be in force until 6th January, 2013.
iii) The Government of India vide Notification S.O. No. 20(E) dated 6th January, 2011 provided that the Lakshadweep Island shall be managed on the basis of an Integrated Island Management Plan (IIMP) to be prepared as per the guidelines given in the notification. The notification stipulates that the Lakshadweep Island Administration shall, within a period of one year from the date of this notification, prepare the IIMPs, inter-alia specifying therein all the existing and proposed developments, conservation and preservation schemes, dwelling units including infrastructure projects such as schools, markets, hospitals, public facilities and the like. The Administration may, if it considers necessary, take the help of research institutions having experience and specialisation in Coastal Resource Management in the preparation of IIMPs, taking into account the guidelines specified in the notification.
iv) Since the Administration of Union Territory of Lakshadweep did not have the required expertise for the preparation of such a comprehensive Integrated Island Management Plan (IIMP) for which lot of scientific inputs are required, Centre for Earth Science Studies (CESS), Trivandrum was approached for preparing the IIMPs for all inhabited and uninhabited islands. The said Centre is, according to the Administration, a prestigious institution under the Ministry of Earth Sciences having experience and specialisation in coastal resource management and has extensive scientific database on Lakshadweep.
v) The CESS informed the Administration that IIMP will be prepared within a period of one year. Work relating to preparation of Integrated Island Management Plan for Agatti and Chetlat Island in the first phase of the study have been completed and the draft plan for Agatti and Chetlat Islands have been submitted to Union Territory of Lakshadweep Administration on 2nd January, 2012 and the study of remaining islands viz. Kavaratti, Andrott, Minicoy, Kalpeni, Kiltan, Kadmat, Amini and Bitra have already started and are in progress.
vi) The Administration has initiated action for giving wide publicity to the draft Integrated Island Management Plan for Agatti Island by uploading it on Lakshadweep website and will be published in two newspapers inviting comments/suggestions from the public as well as other stake holders in the island. On receipt of the comments/suggestions, the Island Administration shall make necessary changes/modification in the draft plan if required and final IIMP shall be submitted to the Ministry of Environment and Forests, Government of India.
vii) It is expected that the IIMP for Agatti and Chetlat Island will be finalised by 6th January 2013 as per the time limit given in the Notification and until that time the CRZ notification of 1991 and its Rules i.e. Coastal Zone Management Plan 1997 shall apply, as clearly stated in clause 3(ii) of the notification.
6. It is evident from the above assertions made in the affidavit of the Administrator that while the process of formulation of IIMPs for Lakshadweep has started, the draft plan received from the CESS is yet to be evaluated by the Administrator and sent for approval to the Government of India. In the meantime, another development has intervened in the form of UT of Lakshadweep, Department of Tourism, issuing a Notification dated 28th January, 2010 inviting proposals from local entrepreneurs and registered organisations from Lakshadweep group of islands for setting up of tourist resorts at Agatti Island fulfilling the prescribed requirements. The case of the Administration is that in response to this Notification the Department has received nine applications for setting up of tourist resorts, which were to be submitted along with:
(a) Environmental clearance from the Department of Environment and Forests;
(b) Land use diversion certificate from SDO/DC/Local Panchayat;
(c) Clearance from Lakshadweep Pollution Control Committee;
(d) Clearance from Coastal Zone Management Authority.
7. Despite reminders issued to the applicants, none of them has fulfilled the above conditions till date. In the result, all the nine applications are awaiting complete details from the applicants. Respondent also happens to be one of the applicants, out of the nine applicants, three of whom have started some construction activity which are at different stages of completion. Respondent is one of the three applicants who has started raising a construction. The case of the Administration is that neither the respondent nor the other applicants have complied with the requisite conditions including the coastal zone clearance. No final approval to any one of the applicants has, therefore, been granted, or could be granted having regard to the fact that as many as five huts constructed by the respondent are located in the NDZ area and are, therefore, in violation of the CRZ Notification 1991 and Coastal Zone Management Plan, 1997, in which the entire area within 50 meters from High Tide Line from both sides, western and eastern, is declared as No Development Zone. According to the Administration, the respondent has violated the conditions of the land use diversion certificate, inasmuch as the land use diversion certificate, permitted construction of dwelling houses away from the NDZ whereas the respondent has set up a commercial enterprise like a tourist resort, which was not authorised. According to the affidavit of the Administration, the Administration proposes to conduct a detailed inquiry to fix responsibility of officials for not taking action while construction of five huts in NDZ was being carried on by the respondent. The affidavit refers to a show cause notice issued to the respondent to remove the construction in Sy. Nos. 1300/1, 1301/1A and 1301/1 Part. Writ Petition No. 1312/2012 was filed by respondent against the said notice in which the High Court has directed the parties to maintain status quo in respect of the building in question.
8. The affidavit further states that a tourist resort owned by the Administration at Agatti is closed with effect from 4th February, 2012. The affidavit also refers to five resorts owned by the Department of Tourism, UT of Lakshadweep, that the Administration runs at different islands which were constructed during 1980s and 1990s. The affidavit goes on to state that there is no home stay policy and the Administration has not authorised any owner of house to run a home stay. On an experimental basis, the Home based tourism was started in Agatti during October-December 2011 by the Administration. The Administration, it is asserted, had hired few houses in the village Agatti which were lying vacant and owners of the said houses were paid on daily user basis whenever the guests were staying. That arrangement has now been stopped as a section of islanders had objected to the same. The Administration is engaged in discussing with various sections of society to frame a policy for home stay, based on the Bed and Breakfast scheme of Government of India which will be applicable to the houses in the village area and resorts will not be covered under any such policy.
9. An affidavit has been filed by Deputy Director, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi , which has taken the same line of argument as set up by the Administrator in his affidavit especially as regards the finalisation of IIMPs with the help of CESS, the issue of Government of Indias Notification dated 6th January, 2011 and any construction in Coastal Regulation Zone between 50 meters and 500 meters from the High Tide Line being in violation of the CRZ Notification hence liable to be proceeded against by the Lakshadweep Coastal Zone Management Authority as per the provisions of the Environment (Protection) Act, 1986.
10. The Director, Tourism in UT of Lakshadweep has separately filed an affidavit stating only one tourist resort owned by the Union Territory is operating in Agatti.
11. Respondents No.1 and 2 have also filed an affidavit in reply, sworn by Mohd. Kasim H.K., S/o Syed Mohammed, one of the partners of respondent No.1. In this affidavit, the respondent clearly emphasises that although the width of the No Development Zone in respect of Agatti Island is uniformly 50 meters from the high tide line, the high tide line is not demarcated till date and the assertion that the respondent No.1 has violated the CRZ notification and raised construction in the No Development Zone is without any basis. The respondent has also relied on the certificates issued by the PWD of the Lakshadweep Administration which according to the respondent show that the construction does not fall in the No Development Zone. It is further stated that the respondents have obtained the requisite clearance like the occupancy certificate issued by the district Panchayat, No Objection Certificate issued by the Lakshadweep Pollution Control Committee, in principle approval granted by the petitioner-Administration, environmental clearance granted by the Department of Environment and Forests, provisional clearance granted by the Tourism Department, no objection certificate granted by the village Panchayat and no objection certificate granted by the district Panchayat.
12. The allegation that the land use diversion certificate has been violated, is also denied. The Administration was, according to the respondent, aware from the inception that the respondent proposed to set up tourist accommodation over the land held by them through a valid lease in their favour. The respondent had submitted an application seeking grant of the land use diversion certificate for the above project. The Administration had prior knowledge of the proposed project and had granted the approval to the same. Since the certificate wrongly mentioned construction of a dwelling house as the purpose of land use diversion the error was brought to the notice of the Administration. The respondent was, however, informed that the certificate had been granted in a general format and should not cause any worry to the respondent. The respondent has also vehemently disputed the assertion of the Administration that no resorts are functional at Agatti. The affidavit refers to Agatti Island Beach Resort, which has been leased out in the year 1996 by the Administration to one T. Muthukoya. It also refers to multi-storeyed tourist accommodation being operated on Agatti Island. Photographs of these establishments have been placed on record. It enlists as many as six different establishments which, according to the respondent, are being run as tourist resorts. The affidavit also disputes the assertion of the Administration that the Home Stay has been discontinued w.e.f. February 2012. The affidavit refers to what is described as parallel tourism resorts set up with the active permission of the Administration.
13. The Administration has filed an affidavit in rejoinder sworn by one Asarpal Singh, Deputy Resident Commissioner for UT. Apart from reiterating the assertion made by the Administration in the affidavit, it alleges that the use of local material is forbidden in Lakshadweep islands as the locally available sand being coral dust is not allowed to be used for building purposes. All the building material is, therefore, imported from the mainland. The thatched roof over the hutments is also a false roofing as the cottages are air-conditioned and the thatched roof is only a camouflage. The rooms visible in the photographs are actually pucca constructions. The structures are made of cement and concrete. The accommodation is according to the Administration advertised for a price ranging between Rs.6000-12000/- per day.
14. We have referred copiously to the pleadings of the parties only to draw the contours of the
controversy before us. Broadly speaking only two questions arise for our determination in the backdrop set out above. These are:
1) Whether the High Court was in the facts and circumstances of the case correct in allowing the interim prayer of the respondent and permitting him to run the resort? and
2) If the answer to question No. 1 be in the negative, what is the way forward?
14.1. We shall deal with the questions ad-seriatim.
Re. Question No. 1
15. Appearing for the appellant-UT Administration of Lakshadweep, Mr. H.P. Raval, learned Additional Solicitor General of India contended that the High Court had without adverting to the several aspects that arose for consideration permitted the respondent to run the resort simply because the respondent is alleged to have engaged 47 employees who were likely to be affected if the resort was shut down. Mr. Raval submitted that permitting the respondent to run a resort which was established in complete violation of the CRZ regulations and contrary to the land use diversion certificate granted in its favour was tantamount to placing a premium on an illegality committed by the said respondent.
16. Mr. Giri, learned senior counsel appearing for the respondents, on the other hand argued that the Administration was adopting double standards inasmuch as they were permitting certain resorts to operate while the resort which had secured the requisite permissions, was being prevented from doing its legitimate business. It was contended that in the absence of a policy forbidding home stay arrangement for tourists visiting the Islands the refusal of the Administration to permit the resort for being used even as home stay was arbitrary. It was also contended that while there were allegations of breach of the conditions, subject to which the authorities had granted clearances, such allegations were levelled only after the respondent had approached the High Court for redress.
17. The High Court has not indeed done justice to the issues raised by the parties, whether the same relate to the alleged violations committed by the respondent-entrepreneur in setting up of a resort or the Administration permitting similar resorts to operate in the garb of home stay arrangement while preventing the respondent from doing so. The High Court has not even referred to the Notification dated 6th January, 2011 issued by the Government under Section 3 of the Environment (Protection) Act, 1986 or the effect thereof on the establishment of the project that does not so far have a final clearance and completion certificate from the competent authority and is being accused of serious violations. The High Courts order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ Court. We have, therefore, no hesitation in holding that the order passed by the High Court is legally unsustainable. Question No. 1 is accordingly answered in the negative, and the impugned order set aside.
Re. Question No. 2
18. Lakshadweep or Laccadive is a cluster of islands situate at a distance ranging from two hundred to four hundred and forty kms. from the main land known for their natural beauty but fragile, ecological and environmental balance. Most of the islands are not inhabited, the total population living on the islands including Agatti, which is the largest in size, being just about sixty thousand. The island is of great attraction for tourists both domestic and international who approach this unique destination by sea as also by air. The islands are centrally administered and have been the concern of the Administrators as much as the environmentalists. All the same there has not been much development activity in the area largely because of absence of any vision plan as to the manner and extent and the kind of development that would suit the area keeping in view its locational advantages and disadvantages. Progress in this direction is so slow that it is often overtaken by the pressure of the up market forces that push tourism inflow in these areas to higher levels with every passing year. While entrepreneurs may be keen to invest and develop facilities for tourists and infrastructure for locals living on the islands, the question is whether such pressure ought to disturb the Administrations resolve to permit only a planned development and management of these islands on a basis that is both ecologically and economically sustainable.
19. Given the fact that no vision or master plan for the development of the islands has been prepared so far, developments made over the past few decades, may be haphazard. Mr. Raval, however, submitted that the Government of India was conscious of the importance of the region and had in terms of Notification dated 6th January, 2011 directed the preparation of an integrated management plan for the islands. While broad guidelines were available in the said Notification, the details have to be worked out by experts not only in science, environment and the like but also town-planners who will have a major role to play in how the islands should develop. Having said that Mr. Raval fairly conceded that the draft IIMPs for two of the islands received from the CESS have not been evaluated by the U.T. Administration nor does the Administration have the assistance of any expert body that can look into the draft IIMPs and suggest modifications, improvements or alterations in the same. That being so neither the Lakshadweep Administration nor the Government of India were according to Mr. Raval averse to the constitution of an expert Committee that could assist the Lakshadweep Administration in finalising the IIMPs so that the same is submitted to the Government of India for approval at the earliest.
20. Mr. Giri, learned counsel for the respondents too had no objection to the appointment of a committee of experts to do the needful. He however urged that since the committee could be requested to examine other aspects of the controversy also the same could be headed by a former Judge of this Court.
21. Notification dated 6th January, 2011 issued by the Government of India under Section 3 of the Environment (Protection) Act, 1986 read with sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, inter alia, provides for the preparation of Integrated Islands Management Plans for each of the islands in Lakshadweep. These IIMPs have to specify all the existing and proposed developments, conservation and preservation schemes, dwelling units including dwelling infrastructure projects such as, schools, markets, hospitals, public facilities and the like. The notification further provides that development activities in the island shall be included in the IIMPs in accordance with the rules and regulations and building bye-laws of local town and country planning for the time being in force in the islands and that all activities in the islands including the aquatic area shall be regulated by the Lakshadweep Islands Administration on the basis of the IIMPs. Notification also gives certain guidelines which have to be kept in view while preparing the IIMPs. It makes the UT Coastal Zone Management Authority responsible for enforcing and monitoring the notification and assisting in the task of constituting District Level Committees under the Chairmanship of District Magistrate concerned with at least three representatives of local traditional coastal communities. Notification also enumerates the activities that shall be prohibited on the islands including destruction of corals, mining of sand in and around coral areas, construction of shore protection works, disposal of untreated sewage or effluents, and disposal of solid wastes including fly ash, industrial waste, medical waste etc. It also permits setting up of new industries and expansion of existing industries except those directly related to waterfront or directly needing offshore facilities. Suffice it to say that the Notification draws the contours of the IIMPs envisaged thereunder, but leaves the details to be worked out by the Lakshadweep Administration if necessary with the help of experts in the relevant fields.
22. The issue of the Notification, in our view, is a step forward in the direction of providing an integrated sustainable development of the islands along planned and scientific lines, taking into consideration all the relevant factors. As noticed in the earlier part of this order draft IIMPs for two islands, one of which happens to be Agatti, have already been submitted which are yet to be finalised by the Lakshadweep Administration.
23. In the light of the above we have no difficulty in directing the constitution of an Expert Committee with a request to it to look into the matters set out in the terms of reference which we are setting out herein below. The Lakshadweep Administration has proposed that the Committee could comprise of four expert members from different fields named in the memo filed by the Administration under the chairmanship of Justice R.V. Raveendran, former Judge of Supreme Court of India. Mr. Giri has no objection to the composition of the Committee being as proposed. We are also inclined to accept the proposal submitted in this regard. We are hopeful that the setting up of the Committee will not only provide expert assistance to the Lakshadweep Administration and eventually the Government of India in the preparation and approval of the IIMPs for the islands in question but also expedite the entire process for the general benefit of the people living on the islands as also for those visiting the place as tourists. Once the IIMPs are in place, all development activities will have to be regulated in accordance with the said plans which will make it so much easy for the Administration to grant approvals and clearances for activities that are permissible under such plans for the areas reserved for the same. It will also provide for a broad framework for the future development of the islands without disturbing the ecological or environmental balance and affecting the beauty of the area.
24. That brings us to yet another aspect which has been debated at some length by learned counsel for the parties before us concerning the alleged violation of CRZ and the land use diversion certificate by the respondent. It is not possible for us to express any opinion on any one of those aspects for the same would require inspection and verification of facts on the spot apart from examination of the relevant record concerning the issue of the permission and the alleged violation of the conditions subject to which they were issued. That exercise can, in our opinion, be more effectively undertaken by the Expert Committee not only in relation to the respondent but also in relation to all other resorts and commercial establishments being run on the islands. So also the question, whether the Administration committed any violation of the CRZ Regulations by granting permission to any resort in the name of home stay or committed any other irregularity or adopted any unfair or discriminatory approach towards any one or more resorts or commercial establishments is a matter that can be looked into by the Committee.
25. Suffice it to say that allegations and counter-allegations made by the parties against each other in regard to the violation of the CRZ and other irregularities in the matter of establishment and/or running of resorts and home stay and grant of permits to tourists visiting the islands can also be examined by the Expert Committee and action, if any, considered appropriate by it recommended in the Report to be submitted to this Court. While doing so, the Committee shall also examine whether any official of the Lakshadweep Administration has wilfully or otherwise neglected the discharge of his duties whether the same related to violation of CRZ norms or any other act of omission or commission. The Committee may examine whether there is any criminal element in any such neglect or act of omission or commission on the part of any of the officials in the Lakshadweep Administration.
26. We are told that CBI had been at one stage asked to look into certain violations alleged in relation to the affairs of the islands. The Committee may examine the said report also and recommend, if necessary, any investigation to be conducted by the CBI into the alleged blameworthy conduct of the officers if there be any need for such investigation.
27. In the result, we appoint the following Committee of experts:
Justice R.V. Raveendran, – Chairman
Former Judge, Supreme Court of India
Dr. M. Baba, – Member
Executive Director, Advance Training Centre
for Earth System Sciences and Climate,
Indian Institute of Tropical Meteorology
(IITM), Pune
Mr. B.R. Subramaniam, – Member
Project Director
Integrated Coastal and Marine Area
Management (ICMAM)
Project under Ministry of Earth Sciences,
Govt. of India
Prof. M.M. Kamath – Member
Chief Engineer (Civil) (retd.)
Vice-Chairman, Expert Appraisal Committee on
CRZ/Infrastructure Projects Constituted by
Ministry of Environment and Forests
Prof. E.F.N. Ribeiro – Member
School of Planning and Architecture,
New Delhi
28. Director, Science and Technology, Lakshadweep Administration, shall be the nodal officer, responsible for organising and providing the necessary administrative, secretarial and logistic support required by the Committee. The Committee shall endeavour to work on the following broad terms of reference:
(I) The Committee shall use its expertise for evaluation of the draft IIMPs received from CESS or others that may be received in due course, and make such additions or alterations in the same as it may consider proper having regard, inter alia, to the following:
(a) The development already in existence and the future developments, conservation and preservation of the entire area keeping in view the statutory Notification dated 6th January, 2011 issued by the Government of India under the provisions of the Environment Protection Act, 1986.
(b) The impact of the proposed development on the livelihood of indigenous population and the various vulnerability issues.
(c) Reservation/identification of suitable locations and areas for creation of public and semipublic facilities for development of tourism in the islands.
(d) Redevelopment/sustainable development of inhabited and/or uninhabited areas of each island as independent and self contained units or as part of a larger development plan along scientific lines.
(II) The Committee may consider and recommend incorporation in the IIMP, Development Control Regulations governing the developmental activity in accordance with the final proposals on the IIMP for the purpose of islanders seeking clearances for permissible development activities on the islands. Such regulations may also include setting up of an appellate authority for the grievance redressal of the islanders with respect to such clearances. The Committee may suggest an outer time frame within which the Authority may have to respond to the applications of the islanders seeking permission for development activities.
(III) The Committee may examine the desirability and the feasibility of running home stays for tourism purpose in the islands and may suggest the same to be incorporated in the IIMPs. The Committee may examine and suggest necessary guidelines keeping in mind environmental, economic and security considerations for running of such Home stays including norms/rules for such home stays and the number of home stays to be permitted, the number of permits to be granted, the norms for identification of houses for homestays, and the facilities to be offered etc.
(IV) The Committee may in its wisdom and discretion make suggestions on any other issue concerning the islands which it may deem fit.
29. The Committee shall examine allegations regarding violation of the CRZ and other irregularities committed by the respondent or by other individuals/entities in relation to establishment and/or running resorts and home stays in the islands. Allegations regarding irregularities in the matter of grant of permits to the tourists visiting the islands as also in regard to permissions granted to the resort owners/home stays to operate on the islands shall also be examined by the Committee. So, also the Committee shall be free to examine whether any official of the Lakshadweep Administration has been guilty of any act of omission or commission in the discharge of his official duties and if considered necessary recommend action against such officials.
30. The remuneration payable to the Chairman and the members of the Committee is not being determined by us. We deem it fit to leave that matter to be decided by the Committee keeping in view the nature of work to be undertaken by it and the time required to accomplish the same.
31. The Chairman of the Committee may, in his discretion co-opt or associate with the Committee, any other expert member from any field considered relevant by it or take the assistance of any scientific or expert body considered necessary for completion of the assignment.
32. The Committee shall evolve its own procedure including the place and time of the meetings, division of work, powers, duties and responsibilities of members etc.
33. The Lakshadweep Administration shall provide to the Committee the requisite information, documents, material, infrastructure or any other requirement for the successful implementation of the objectives of the Committee.
34. The expenses incurred directly or indirectly for the functioning/management of the Committee shall be borne by the Administration.
35. The Committee is requested to submit a preliminary report about the steps taken by it as far as possible within a period of two months from the date of receipt of a copy of this order.
36. The matter shall be posted for orders before the Court after the receipt of the preliminary report.
***************
1. Leave granted.
2. These appeals have been filed by the Union Territory of Lakshadweep against an order dated 16th January, 2012 passed by the High Court of Kerala at Ernakulam whereby the High Court has directed the appellants to process the applications made by respondent No.1-Seashells Beach Resort, hereinafter referred to as respondent, for all clearances including finalisation of CRZ norms and pending final decision on the same, to permit the respondent to run the resort established by it at Agatti. The High Court has further directed the appellants to issue travel permits and entry passes required by tourists making use of the accommodation in the said resort.
3. Lakshadweep Administration finds fault with the direction issued by the High Court on several grounds including the ground that respondent-writ petitioner before the High Court had no licence from the Tourism Department and no clearance from the Coastal Zone Regulatory Authority or the Pollution Control Board to run the resort established by it. It is alleged that the direction issued by the High Court amounts to permitting the respondent to run a resort sans legal permission and authority and without any check, control or regulation regarding its affairs. The Administration also points out that diversion of land use qua different survey numbers in Agatti was obtained by one of the partners of the respondent for construction of dwelling houses and not for establishing a commercial establishment like a tourist resort and that respondent No.1 had misused the said permission by constructing a resort in the No Development Zone (NDZ) falling within 50 metres of High Tide Line and thereby violated the CRZ norms. The respondent has, according to the Administration, constructed cottage at a distance of 28 metres from the High Tide Line on the western side of the sea and thus violated the terms of the permission given to it. The Administration further alleges that it had never permitted the respondent to run a resort and that it had on the basis of a permission obtained from the local panchayat, which had no authority to issue such permission, started bringing tourists, including foreign tourists, to the resort on the pretext that the accommodation was in the nature of home stay. The Administration asserts that neither the Union Territory of Lakshadweep nor the Government of India have taken any policy decision regarding permitting home stay arrangements on the Lakshadweep islands and that the High Court had completely overlooked the fact that all development in relation to the said islands shall have to be in accordance with the Integrated Island Management Plan and the CRZ norms. The Administration also relies upon a Notification dated 6th January, 2011 issued by the Government of India in exercise of its powers under Section 3 of the Environment (Protection) Act, 1986 which notification is intended to promote conservation and protection of the Islands unique environment and its marine area and to promote development through a sustainable integrated management plan based on scientific principles, taking into account the vulnerability of the coast to natural hazards.
4. When these petitions came before us for preliminary hearing on 2nd March 2012, this Court while issuing notice to the respondent and staying the operation of the impugned order passed by the High Court, directed the petitioner and respondent No.2 to furnish the following information on affidavit:
1) Whether the proposed Integrated Island Management Plan has been finalised for the Union Territory of Lakshadweep and whether CRZ for the said territory has been notified?
2) If the CRZ has not been notified or the plan has not been finalised, the reasons for delay and the stage at which the matter rests at present and the particulars of the authority with whom the matter is pending.
3) The total number of the applications received by the Union Territory of Lakshadweep for setting up of resorts and stage at which the said applications are pending/being processed.
4) The nature and extent of the violations which the administration of the Union Territory of Lakshadweep have noticed in the proposed resorts and the action, if any, taken for removal of such violations. If no action has been taken/initiated for removal of the violation, the reasons for the failure of the authorities to do so and the persons responsible for the omission/inaction.
5) The particulars of unauthorised resorts being operated in any part of the Union Territory of the Lakshadweep and the action proposed to be taken for closure/removal of such resorts.
5. In compliance with the above directions, the Administrator of the UT of Lakshadweep has filed an affidavit, inter-alia, stating:
i) The proposed Integrated Island Management Plan (IIMP) for Agatti Island in pursuance of the notification dated 6th January, 2011 of Ministry of Environment and Forests has not been finalized as yet and is under finalization with the Administration of Union Territory of Lakshadweep. The Coastal Regulation Zone (CRZ) Notification for the whole country including the UT of Lakshadweep Island has been notified by the Ministry of Environment & Forests, Government of India vide CRZ Notification S.O. No. 114(E) dated 19th February, 1991.
ii) In exercise of the powers conferred under Section 3(3)(i) and 3(3)(ii) of CRZ Notification dated 19th February, 1991 a Coastal Zone Management Plan for UT of Lakshadweep was also notified by the Administration on 22nd August, 1997 which is in force till date and shall be in force until 6th January, 2013.
iii) The Government of India vide Notification S.O. No. 20(E) dated 6th January, 2011 provided that the Lakshadweep Island shall be managed on the basis of an Integrated Island Management Plan (IIMP) to be prepared as per the guidelines given in the notification. The notification stipulates that the Lakshadweep Island Administration shall, within a period of one year from the date of this notification, prepare the IIMPs, inter-alia specifying therein all the existing and proposed developments, conservation and preservation schemes, dwelling units including infrastructure projects such as schools, markets, hospitals, public facilities and the like. The Administration may, if it considers necessary, take the help of research institutions having experience and specialisation in Coastal Resource Management in the preparation of IIMPs, taking into account the guidelines specified in the notification.
iv) Since the Administration of Union Territory of Lakshadweep did not have the required expertise for the preparation of such a comprehensive Integrated Island Management Plan (IIMP) for which lot of scientific inputs are required, Centre for Earth Science Studies (CESS), Trivandrum was approached for preparing the IIMPs for all inhabited and uninhabited islands. The said Centre is, according to the Administration, a prestigious institution under the Ministry of Earth Sciences having experience and specialisation in coastal resource management and has extensive scientific database on Lakshadweep.
v) The CESS informed the Administration that IIMP will be prepared within a period of one year. Work relating to preparation of Integrated Island Management Plan for Agatti and Chetlat Island in the first phase of the study have been completed and the draft plan for Agatti and Chetlat Islands have been submitted to Union Territory of Lakshadweep Administration on 2nd January, 2012 and the study of remaining islands viz. Kavaratti, Andrott, Minicoy, Kalpeni, Kiltan, Kadmat, Amini and Bitra have already started and are in progress.
vi) The Administration has initiated action for giving wide publicity to the draft Integrated Island Management Plan for Agatti Island by uploading it on Lakshadweep website and will be published in two newspapers inviting comments/suggestions from the public as well as other stake holders in the island. On receipt of the comments/suggestions, the Island Administration shall make necessary changes/modification in the draft plan if required and final IIMP shall be submitted to the Ministry of Environment and Forests, Government of India.
vii) It is expected that the IIMP for Agatti and Chetlat Island will be finalised by 6th January 2013 as per the time limit given in the Notification and until that time the CRZ notification of 1991 and its Rules i.e. Coastal Zone Management Plan 1997 shall apply, as clearly stated in clause 3(ii) of the notification.
6. It is evident from the above assertions made in the affidavit of the Administrator that while the process of formulation of IIMPs for Lakshadweep has started, the draft plan received from the CESS is yet to be evaluated by the Administrator and sent for approval to the Government of India. In the meantime, another development has intervened in the form of UT of Lakshadweep, Department of Tourism, issuing a Notification dated 28th January, 2010 inviting proposals from local entrepreneurs and registered organisations from Lakshadweep group of islands for setting up of tourist resorts at Agatti Island fulfilling the prescribed requirements. The case of the Administration is that in response to this Notification the Department has received nine applications for setting up of tourist resorts, which were to be submitted along with:
(a) Environmental clearance from the Department of Environment and Forests;
(b) Land use diversion certificate from SDO/DC/Local Panchayat;
(c) Clearance from Lakshadweep Pollution Control Committee;
(d) Clearance from Coastal Zone Management Authority.
7. Despite reminders issued to the applicants, none of them has fulfilled the above conditions till date. In the result, all the nine applications are awaiting complete details from the applicants. Respondent also happens to be one of the applicants, out of the nine applicants, three of whom have started some construction activity which are at different stages of completion. Respondent is one of the three applicants who has started raising a construction. The case of the Administration is that neither the respondent nor the other applicants have complied with the requisite conditions including the coastal zone clearance. No final approval to any one of the applicants has, therefore, been granted, or could be granted having regard to the fact that as many as five huts constructed by the respondent are located in the NDZ area and are, therefore, in violation of the CRZ Notification 1991 and Coastal Zone Management Plan, 1997, in which the entire area within 50 meters from High Tide Line from both sides, western and eastern, is declared as No Development Zone. According to the Administration, the respondent has violated the conditions of the land use diversion certificate, inasmuch as the land use diversion certificate, permitted construction of dwelling houses away from the NDZ whereas the respondent has set up a commercial enterprise like a tourist resort, which was not authorised. According to the affidavit of the Administration, the Administration proposes to conduct a detailed inquiry to fix responsibility of officials for not taking action while construction of five huts in NDZ was being carried on by the respondent. The affidavit refers to a show cause notice issued to the respondent to remove the construction in Sy. Nos. 1300/1, 1301/1A and 1301/1 Part. Writ Petition No. 1312/2012 was filed by respondent against the said notice in which the High Court has directed the parties to maintain status quo in respect of the building in question.
8. The affidavit further states that a tourist resort owned by the Administration at Agatti is closed with effect from 4th February, 2012. The affidavit also refers to five resorts owned by the Department of Tourism, UT of Lakshadweep, that the Administration runs at different islands which were constructed during 1980s and 1990s. The affidavit goes on to state that there is no home stay policy and the Administration has not authorised any owner of house to run a home stay. On an experimental basis, the Home based tourism was started in Agatti during October-December 2011 by the Administration. The Administration, it is asserted, had hired few houses in the village Agatti which were lying vacant and owners of the said houses were paid on daily user basis whenever the guests were staying. That arrangement has now been stopped as a section of islanders had objected to the same. The Administration is engaged in discussing with various sections of society to frame a policy for home stay, based on the Bed and Breakfast scheme of Government of India which will be applicable to the houses in the village area and resorts will not be covered under any such policy.
9. An affidavit has been filed by Deputy Director, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi , which has taken the same line of argument as set up by the Administrator in his affidavit especially as regards the finalisation of IIMPs with the help of CESS, the issue of Government of Indias Notification dated 6th January, 2011 and any construction in Coastal Regulation Zone between 50 meters and 500 meters from the High Tide Line being in violation of the CRZ Notification hence liable to be proceeded against by the Lakshadweep Coastal Zone Management Authority as per the provisions of the Environment (Protection) Act, 1986.
10. The Director, Tourism in UT of Lakshadweep has separately filed an affidavit stating only one tourist resort owned by the Union Territory is operating in Agatti.
11. Respondents No.1 and 2 have also filed an affidavit in reply, sworn by Mohd. Kasim H.K., S/o Syed Mohammed, one of the partners of respondent No.1. In this affidavit, the respondent clearly emphasises that although the width of the No Development Zone in respect of Agatti Island is uniformly 50 meters from the high tide line, the high tide line is not demarcated till date and the assertion that the respondent No.1 has violated the CRZ notification and raised construction in the No Development Zone is without any basis. The respondent has also relied on the certificates issued by the PWD of the Lakshadweep Administration which according to the respondent show that the construction does not fall in the No Development Zone. It is further stated that the respondents have obtained the requisite clearance like the occupancy certificate issued by the district Panchayat, No Objection Certificate issued by the Lakshadweep Pollution Control Committee, in principle approval granted by the petitioner-Administration, environmental clearance granted by the Department of Environment and Forests, provisional clearance granted by the Tourism Department, no objection certificate granted by the village Panchayat and no objection certificate granted by the district Panchayat.
12. The allegation that the land use diversion certificate has been violated, is also denied. The Administration was, according to the respondent, aware from the inception that the respondent proposed to set up tourist accommodation over the land held by them through a valid lease in their favour. The respondent had submitted an application seeking grant of the land use diversion certificate for the above project. The Administration had prior knowledge of the proposed project and had granted the approval to the same. Since the certificate wrongly mentioned construction of a dwelling house as the purpose of land use diversion the error was brought to the notice of the Administration. The respondent was, however, informed that the certificate had been granted in a general format and should not cause any worry to the respondent. The respondent has also vehemently disputed the assertion of the Administration that no resorts are functional at Agatti. The affidavit refers to Agatti Island Beach Resort, which has been leased out in the year 1996 by the Administration to one T. Muthukoya. It also refers to multi-storeyed tourist accommodation being operated on Agatti Island. Photographs of these establishments have been placed on record. It enlists as many as six different establishments which, according to the respondent, are being run as tourist resorts. The affidavit also disputes the assertion of the Administration that the Home Stay has been discontinued w.e.f. February 2012. The affidavit refers to what is described as parallel tourism resorts set up with the active permission of the Administration.
13. The Administration has filed an affidavit in rejoinder sworn by one Asarpal Singh, Deputy Resident Commissioner for UT. Apart from reiterating the assertion made by the Administration in the affidavit, it alleges that the use of local material is forbidden in Lakshadweep islands as the locally available sand being coral dust is not allowed to be used for building purposes. All the building material is, therefore, imported from the mainland. The thatched roof over the hutments is also a false roofing as the cottages are air-conditioned and the thatched roof is only a camouflage. The rooms visible in the photographs are actually pucca constructions. The structures are made of cement and concrete. The accommodation is according to the Administration advertised for a price ranging between Rs.6000-12000/- per day.
14. We have referred copiously to the pleadings of the parties only to draw the contours of the
controversy before us. Broadly speaking only two questions arise for our determination in the backdrop set out above. These are:
1) Whether the High Court was in the facts and circumstances of the case correct in allowing the interim prayer of the respondent and permitting him to run the resort? and
2) If the answer to question No. 1 be in the negative, what is the way forward?
14.1. We shall deal with the questions ad-seriatim.
Re. Question No. 1
15. Appearing for the appellant-UT Administration of Lakshadweep, Mr. H.P. Raval, learned Additional Solicitor General of India contended that the High Court had without adverting to the several aspects that arose for consideration permitted the respondent to run the resort simply because the respondent is alleged to have engaged 47 employees who were likely to be affected if the resort was shut down. Mr. Raval submitted that permitting the respondent to run a resort which was established in complete violation of the CRZ regulations and contrary to the land use diversion certificate granted in its favour was tantamount to placing a premium on an illegality committed by the said respondent.
16. Mr. Giri, learned senior counsel appearing for the respondents, on the other hand argued that the Administration was adopting double standards inasmuch as they were permitting certain resorts to operate while the resort which had secured the requisite permissions, was being prevented from doing its legitimate business. It was contended that in the absence of a policy forbidding home stay arrangement for tourists visiting the Islands the refusal of the Administration to permit the resort for being used even as home stay was arbitrary. It was also contended that while there were allegations of breach of the conditions, subject to which the authorities had granted clearances, such allegations were levelled only after the respondent had approached the High Court for redress.
17. The High Court has not indeed done justice to the issues raised by the parties, whether the same relate to the alleged violations committed by the respondent-entrepreneur in setting up of a resort or the Administration permitting similar resorts to operate in the garb of home stay arrangement while preventing the respondent from doing so. The High Court has not even referred to the Notification dated 6th January, 2011 issued by the Government under Section 3 of the Environment (Protection) Act, 1986 or the effect thereof on the establishment of the project that does not so far have a final clearance and completion certificate from the competent authority and is being accused of serious violations. The High Courts order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ Court. We have, therefore, no hesitation in holding that the order passed by the High Court is legally unsustainable. Question No. 1 is accordingly answered in the negative, and the impugned order set aside.
Re. Question No. 2
18. Lakshadweep or Laccadive is a cluster of islands situate at a distance ranging from two hundred to four hundred and forty kms. from the main land known for their natural beauty but fragile, ecological and environmental balance. Most of the islands are not inhabited, the total population living on the islands including Agatti, which is the largest in size, being just about sixty thousand. The island is of great attraction for tourists both domestic and international who approach this unique destination by sea as also by air. The islands are centrally administered and have been the concern of the Administrators as much as the environmentalists. All the same there has not been much development activity in the area largely because of absence of any vision plan as to the manner and extent and the kind of development that would suit the area keeping in view its locational advantages and disadvantages. Progress in this direction is so slow that it is often overtaken by the pressure of the up market forces that push tourism inflow in these areas to higher levels with every passing year. While entrepreneurs may be keen to invest and develop facilities for tourists and infrastructure for locals living on the islands, the question is whether such pressure ought to disturb the Administrations resolve to permit only a planned development and management of these islands on a basis that is both ecologically and economically sustainable.
19. Given the fact that no vision or master plan for the development of the islands has been prepared so far, developments made over the past few decades, may be haphazard. Mr. Raval, however, submitted that the Government of India was conscious of the importance of the region and had in terms of Notification dated 6th January, 2011 directed the preparation of an integrated management plan for the islands. While broad guidelines were available in the said Notification, the details have to be worked out by experts not only in science, environment and the like but also town-planners who will have a major role to play in how the islands should develop. Having said that Mr. Raval fairly conceded that the draft IIMPs for two of the islands received from the CESS have not been evaluated by the U.T. Administration nor does the Administration have the assistance of any expert body that can look into the draft IIMPs and suggest modifications, improvements or alterations in the same. That being so neither the Lakshadweep Administration nor the Government of India were according to Mr. Raval averse to the constitution of an expert Committee that could assist the Lakshadweep Administration in finalising the IIMPs so that the same is submitted to the Government of India for approval at the earliest.
20. Mr. Giri, learned counsel for the respondents too had no objection to the appointment of a committee of experts to do the needful. He however urged that since the committee could be requested to examine other aspects of the controversy also the same could be headed by a former Judge of this Court.
21. Notification dated 6th January, 2011 issued by the Government of India under Section 3 of the Environment (Protection) Act, 1986 read with sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, inter alia, provides for the preparation of Integrated Islands Management Plans for each of the islands in Lakshadweep. These IIMPs have to specify all the existing and proposed developments, conservation and preservation schemes, dwelling units including dwelling infrastructure projects such as, schools, markets, hospitals, public facilities and the like. The notification further provides that development activities in the island shall be included in the IIMPs in accordance with the rules and regulations and building bye-laws of local town and country planning for the time being in force in the islands and that all activities in the islands including the aquatic area shall be regulated by the Lakshadweep Islands Administration on the basis of the IIMPs. Notification also gives certain guidelines which have to be kept in view while preparing the IIMPs. It makes the UT Coastal Zone Management Authority responsible for enforcing and monitoring the notification and assisting in the task of constituting District Level Committees under the Chairmanship of District Magistrate concerned with at least three representatives of local traditional coastal communities. Notification also enumerates the activities that shall be prohibited on the islands including destruction of corals, mining of sand in and around coral areas, construction of shore protection works, disposal of untreated sewage or effluents, and disposal of solid wastes including fly ash, industrial waste, medical waste etc. It also permits setting up of new industries and expansion of existing industries except those directly related to waterfront or directly needing offshore facilities. Suffice it to say that the Notification draws the contours of the IIMPs envisaged thereunder, but leaves the details to be worked out by the Lakshadweep Administration if necessary with the help of experts in the relevant fields.
22. The issue of the Notification, in our view, is a step forward in the direction of providing an integrated sustainable development of the islands along planned and scientific lines, taking into consideration all the relevant factors. As noticed in the earlier part of this order draft IIMPs for two islands, one of which happens to be Agatti, have already been submitted which are yet to be finalised by the Lakshadweep Administration.
23. In the light of the above we have no difficulty in directing the constitution of an Expert Committee with a request to it to look into the matters set out in the terms of reference which we are setting out herein below. The Lakshadweep Administration has proposed that the Committee could comprise of four expert members from different fields named in the memo filed by the Administration under the chairmanship of Justice R.V. Raveendran, former Judge of Supreme Court of India. Mr. Giri has no objection to the composition of the Committee being as proposed. We are also inclined to accept the proposal submitted in this regard. We are hopeful that the setting up of the Committee will not only provide expert assistance to the Lakshadweep Administration and eventually the Government of India in the preparation and approval of the IIMPs for the islands in question but also expedite the entire process for the general benefit of the people living on the islands as also for those visiting the place as tourists. Once the IIMPs are in place, all development activities will have to be regulated in accordance with the said plans which will make it so much easy for the Administration to grant approvals and clearances for activities that are permissible under such plans for the areas reserved for the same. It will also provide for a broad framework for the future development of the islands without disturbing the ecological or environmental balance and affecting the beauty of the area.
24. That brings us to yet another aspect which has been debated at some length by learned counsel for the parties before us concerning the alleged violation of CRZ and the land use diversion certificate by the respondent. It is not possible for us to express any opinion on any one of those aspects for the same would require inspection and verification of facts on the spot apart from examination of the relevant record concerning the issue of the permission and the alleged violation of the conditions subject to which they were issued. That exercise can, in our opinion, be more effectively undertaken by the Expert Committee not only in relation to the respondent but also in relation to all other resorts and commercial establishments being run on the islands. So also the question, whether the Administration committed any violation of the CRZ Regulations by granting permission to any resort in the name of home stay or committed any other irregularity or adopted any unfair or discriminatory approach towards any one or more resorts or commercial establishments is a matter that can be looked into by the Committee.
25. Suffice it to say that allegations and counter-allegations made by the parties against each other in regard to the violation of the CRZ and other irregularities in the matter of establishment and/or running of resorts and home stay and grant of permits to tourists visiting the islands can also be examined by the Expert Committee and action, if any, considered appropriate by it recommended in the Report to be submitted to this Court. While doing so, the Committee shall also examine whether any official of the Lakshadweep Administration has wilfully or otherwise neglected the discharge of his duties whether the same related to violation of CRZ norms or any other act of omission or commission. The Committee may examine whether there is any criminal element in any such neglect or act of omission or commission on the part of any of the officials in the Lakshadweep Administration.
26. We are told that CBI had been at one stage asked to look into certain violations alleged in relation to the affairs of the islands. The Committee may examine the said report also and recommend, if necessary, any investigation to be conducted by the CBI into the alleged blameworthy conduct of the officers if there be any need for such investigation.
27. In the result, we appoint the following Committee of experts:
Justice R.V. Raveendran, – Chairman
Former Judge, Supreme Court of India
Dr. M. Baba, – Member
Executive Director, Advance Training Centre
for Earth System Sciences and Climate,
Indian Institute of Tropical Meteorology
(IITM), Pune
Mr. B.R. Subramaniam, – Member
Project Director
Integrated Coastal and Marine Area
Management (ICMAM)
Project under Ministry of Earth Sciences,
Govt. of India
Prof. M.M. Kamath – Member
Chief Engineer (Civil) (retd.)
Vice-Chairman, Expert Appraisal Committee on
CRZ/Infrastructure Projects Constituted by
Ministry of Environment and Forests
Prof. E.F.N. Ribeiro – Member
School of Planning and Architecture,
New Delhi
28. Director, Science and Technology, Lakshadweep Administration, shall be the nodal officer, responsible for organising and providing the necessary administrative, secretarial and logistic support required by the Committee. The Committee shall endeavour to work on the following broad terms of reference:
(I) The Committee shall use its expertise for evaluation of the draft IIMPs received from CESS or others that may be received in due course, and make such additions or alterations in the same as it may consider proper having regard, inter alia, to the following:
(a) The development already in existence and the future developments, conservation and preservation of the entire area keeping in view the statutory Notification dated 6th January, 2011 issued by the Government of India under the provisions of the Environment Protection Act, 1986.
(b) The impact of the proposed development on the livelihood of indigenous population and the various vulnerability issues.
(c) Reservation/identification of suitable locations and areas for creation of public and semipublic facilities for development of tourism in the islands.
(d) Redevelopment/sustainable development of inhabited and/or uninhabited areas of each island as independent and self contained units or as part of a larger development plan along scientific lines.
(II) The Committee may consider and recommend incorporation in the IIMP, Development Control Regulations governing the developmental activity in accordance with the final proposals on the IIMP for the purpose of islanders seeking clearances for permissible development activities on the islands. Such regulations may also include setting up of an appellate authority for the grievance redressal of the islanders with respect to such clearances. The Committee may suggest an outer time frame within which the Authority may have to respond to the applications of the islanders seeking permission for development activities.
(III) The Committee may examine the desirability and the feasibility of running home stays for tourism purpose in the islands and may suggest the same to be incorporated in the IIMPs. The Committee may examine and suggest necessary guidelines keeping in mind environmental, economic and security considerations for running of such Home stays including norms/rules for such home stays and the number of home stays to be permitted, the number of permits to be granted, the norms for identification of houses for homestays, and the facilities to be offered etc.
(IV) The Committee may in its wisdom and discretion make suggestions on any other issue concerning the islands which it may deem fit.
29. The Committee shall examine allegations regarding violation of the CRZ and other irregularities committed by the respondent or by other individuals/entities in relation to establishment and/or running resorts and home stays in the islands. Allegations regarding irregularities in the matter of grant of permits to the tourists visiting the islands as also in regard to permissions granted to the resort owners/home stays to operate on the islands shall also be examined by the Committee. So, also the Committee shall be free to examine whether any official of the Lakshadweep Administration has been guilty of any act of omission or commission in the discharge of his official duties and if considered necessary recommend action against such officials.
30. The remuneration payable to the Chairman and the members of the Committee is not being determined by us. We deem it fit to leave that matter to be decided by the Committee keeping in view the nature of work to be undertaken by it and the time required to accomplish the same.
31. The Chairman of the Committee may, in his discretion co-opt or associate with the Committee, any other expert member from any field considered relevant by it or take the assistance of any scientific or expert body considered necessary for completion of the assignment.
32. The Committee shall evolve its own procedure including the place and time of the meetings, division of work, powers, duties and responsibilities of members etc.
33. The Lakshadweep Administration shall provide to the Committee the requisite information, documents, material, infrastructure or any other requirement for the successful implementation of the objectives of the Committee.
34. The expenses incurred directly or indirectly for the functioning/management of the Committee shall be borne by the Administration.
35. The Committee is requested to submit a preliminary report about the steps taken by it as far as possible within a period of two months from the date of receipt of a copy of this order.
36. The matter shall be posted for orders before the Court after the receipt of the preliminary report.
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