| SooperKanoon Citation | sooperkanoon.com/1101541 |
| Court | Kerala High Court |
| Decided On | Dec-10-2013 |
| Judge | HONOURABLE MR.JUSTICE K.M.JOSEPH |
| Appellant | Kapico Kerala Resorts (P) Ltd. |
| Respondent | Ratheesh K.R. |
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY,THE10H DAY OF DECEMBER201319TH AGRAHAYANA, 1935 RP.No. 776 of 2013 ---------------------------- (SEEKING REVIEW OF THE
JUDGMENTIN WP(C)No. 19564/2011 OF THIS HON'BLE COURT DATED2507.2013 ) ........................... REVIEW PETITIONER/8TH RESPONDENT: ---------------------------------------------------------- KAPICO KERALA RESORTS (P) LTD., REGD.OFFICE AT52 M.R.SQARE, D.H.ROAD, KOCHI-17, REPRESENTED BY ITS DIRECTOR, MRS.RETNA EASWARAN,RESIDING AT APARTMENT NO.52, M.R.SQUARE, D.H.ROAD,KOCHI-17. BY ADVS.SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S)/PETITIONERS & RESPONDENTS1O7: ---------------------------------------------------------------------------------------- 1. RATHEESH K.R., AGED26YEARS, S/O.LATE RAVINDRAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA.
2. RENUKA, AGED50YEARS, W/O.LATE RAVINDRAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT.
3. REKHA, AGED26YEARS, W/O.LATE RAVINDRAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT. sv RP.No. 776 of 2013 ---------------------------- 4. OMANA, AGED48YEARS, W/O.LATE PARTHAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
5. REMYA, AGED23YEARS D/O.LATE PARTHAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
6. ABHILASH, AGED21YEARS, S/O.LATE PARTHAN, KALAMBUKATTU NIKARTHIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
7. RAJAMMA, AGED65YEARS, W/O.LATE BHASKARAN, KOOMBAYIL HOUSE, CHEMPU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
8. SARALA, AGED63YEARS, W/O.RAJAPPAN, MUKKIDICHIRAYIL HOUSE, AROOKUTTY VILLAGE, KUDAPURA MURIYIL, CHERTHALA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
9. VALSALA, AGED53YEARS, W/O.BABU, MANJALIKKADU HOUSE, KUMBALAM VILLAGE, PANANGAD MURI, KANAYANNUR TALUK, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SAILAN, AGED46YEARS,S/O.KUMARAN, MALAYATTIL NIKARTHIL, PANAVALLY P.O.,CHERTHALA, ALAPPUZHA DISTRICT.
10. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. RP.No. 776 of 2013 ---------------------------- 11. THE DISTRICT COLLECTOR, ALAPPUZHA-688001.
12. THE DEPUTY DIRECTOR OF FISHERIES, ALAPPUZHA-688001.
13. PANAVALLY GRAMA PANCHAYAT, PANAVALLY,CHERTHALA, ALAPPUZHA REPRESENTED BY ITS SECRETARY-688566.
14. COASTAL MANAGEMENT AUTHORITY, REPRESENTED BY ITS CHAIRMAN, PATTOM, THIRUVANANTHAPURAM-695004.
15. REVENUE DIVISIONAL OFFICER, ALAPPUZHA-688001.
16. INLAND WATERWAYS AUTHORITY OF INDIA, REPRESENTED BY ITS DIRECTOR, KANNADIKKAD, MARADU P.O., KOCHI. 17.ROY M.MATHEW, MUTHOOT HOUSE, KOZHENCHERRY P.O., KOZHENCHERRY DESOM, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, ERNAKULAM DISTRICT-689641. R1TO R9 & R15 BY ADV. SRI.P.K.IBRAHIM BY ADV. SMT.K.P.AMBIKA R10 TO R12 BY GOVERNMENT PLEADER SRI.SYAMKUMAR R13 BY SRI.MANU GOVIND,SC,PANAVALLY G.PANCHAYA R14 BY SRI.PRAKASH C.VADAKKAN. J., SC, KCZMA R16 BY SRI.P.A.AUGUSTINE(AREEKATTEL) R17 BY SRI.BECHU KURIAN THOMAS THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON2911-2013, ALONG WITH R.P.No. 777/2013 AND CONNECTED CASES, THE COURT ON1012-2013 PASSED THE FOLLOWING: sv K. M. JOSEPH & K. HARILAL, JJ ---------------------------------------------------- R.P. No. 776 of 2013 in W.P(c).19564 of 2011, R.P. No. 777 of 2013 in W.P(c).28485 of 2011, R.P. No. 778 of 2013 in W.P(c).34799 of 2011, R.P. No. 779 of 2013 in W.P(c).4808 of 2012, R.P. No. 780 of 2013 in W.P(c).129656 of 2012, R.P. No. 843 of 2013 in W.P(c).19564 of 2011, ---------------------------------------------------- Dated this the 10th day of December, 2013
ORDERK.M. Joseph, J By a common judgment five writ petitions relating to Nediyathuruth Island and two relating to Vettilathuruth Island were disposed of. Five review petitions have been filed by the company. Further one review petition (R.P.843/2013) has been filed by the ninth respondent in the writ petition No.19564 of 2011, who is the Director of the Company.
2. We heard learned counsel appearing for the parties.
3. There is no dispute that SLPs were carried against the judgment by the island owners in so far as it relate to Vettilathuruth Island. The SLPs were dismissed by the Writ Court by judgment reported in 2013(3) KLT677(SC) Vaamika Island (Green Lagoon Resort) v. Union of India. It is also further brought to our notice that though review petitions were R.P.No.776/13 & Conn. cases 2 filed, the same has been dismissed by the Supreme Court.
4. The Company has also filed special leave petitions before the Supreme Court which are stated to be pending. It is while so, the present review petitions have been filed.
5. In the review petitions filed by the Company and the Director of the Company the following submissions are addressed before us: This court has proceeded to treat the Nediyathuruth Island (hereinafter referred to as 'the island') as falling under CRZ-I. It is on the basis that in the Coastal Zone Management Plan, the island is marked as FP (Filtration Pond) indicating that the area is close to spawning and breeding of fish and other marine life. Further more, the court also proceeded to took note that it is a low lying area. It is submitted that this court placed reliance on the statement made by the expert Dr. K.V. Thomas who took the stand that the island was brought in the CRZ-I on the basis that it is FP, on the basis that it is an area close to spawning and breeding of fish and other marine life and also that it is low lying area likely to be inundated on account of the global warming. It is submitted that actually there is a report by a committee headed by one Prof. V. Madhusoodhana Kurup (Director, School of R.P.No.776/13 & Conn. cases 3 Industrial Fisheries and now the Vice Chancellor of Fisheries University) in which the expert Dr. K.V. Thomas was also a member. The report would show that categorization of the island as filtration ponds falling under CRZ-I is erroneous and the report was considered by Kerala Coastal Zone Management Authority which was accepted by the same and it was forwarded to the Government of India. It is averred that a copy of the report was sought for under Right to Information Act and subsequently the report was also placed before us.
6. Therefore, it is contended that this court was persuaded to hold that the island fell in CRZ-I on the basis of misrepresentation made by expert who was a member of the committee and therefore, the judgment must be reviewed. It is also pointed out on behalf of the company that at any rate in a case of violation relating to mass degradation of mangroves, the matter was condoned by imposing fine (Adani Group's case) and the same may be done herein also.
7. Per contra learned counsel for the respondents would submit that review petitions are not maintainable. Two grounds are mentioned. Firstly, it is contended that in view of the judgment of Supreme Court dismissing the special leave petition, R.P.No.776/13 & Conn. cases 4 which is done by giving reasons, the review petitions will not lie. Secondly, it is pointed out that the review petitions have been filed after filing of the SLPs and therefore the review petitions are not to be entertained by this court. Next, it is contended that no reliance can be placed on the reports sought to be relied on by the review petitioners (by the company and the Director). They are at best opinions and what is more is without any material to support the same. Even if these materials had been placed at the time of hearing of the writ petition before the Court, the result would not have been different. This is a case where the company has violated the law brazenly and no ground is made out for review of the judgment.
8. The first question we must consider is whether the review petitions filed by the company and the Director can be maintained? In this regard, the submission of the review petitioners is that the judgment of the Apex Court is one dismissing the Special leave petitions filed in regard to the other island, which is also the subject matter of the common judgment of which the review is sought and therefore, it cannot bar the consideration of the present review petitions. It is submitted that the order is one dismissing special leave petition. In the first place R.P.No.776/13 & Conn. cases 5 an order dismissing the special leave petition with or without reasons will not result in merger of the judgment, it is pointed out. No doubt, it is submitted that if any law has been declared in the judgment of the Supreme Court dismissing the special leave petition, it will bind the review petitioner also. It is pointed out that what the review petitioners are seeking to do is to bring new material which was not available when the writ petitions were heard and this can be done in a review petition only.
9. In the judgment reported in 2013(3) KLT677SC) the Apex Court while dismissing the Special leave petitions by the island owners in relations to other island has inter alia held as follows :
17. CZMP, 1995 of the State shows the entire Vettila Thuruthu as FP (Fig.1:Map No.32A of CZMP). CZMP described FP as : another fish spawning/ breeding ground and these are shallow water bodies adjoining the back water system where certain species of fish are grown in large numbers. The 50m belt adjoining it is also demarcated as CRZ-I, since this area is low lying, it is likely to be inundated due to Sea Level Rise (SLR). Hence, the entire Vettila Thuruthu is described as CRZ-I as per Notification 1991 and, as per Notification 2011, it is described as either CRZ-I, CRZ- III or CRZ-IV. New constructions are not permitted in CRZ-I, the No Development Zone of CRZ-III and in CRZ-IV. Repairs of existing structures can be permitted in No Development Zone of CRZ-III subject to conditions for permissible activities as per the notification. Tourism activity is also not permitted in the No Development Zone of CRZ-III or CRZ-I. R.P.No.776/13 & Conn. cases 6 19. KCZMP was prepared, as already indicated, based on the guidelines of MoEF, taking care of the Maps prepared by the Survey of India (Government of India) and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State. The area between Low Tide Line and High Tide Line is also CRZ- I. The FPs, as already indicated, are shallow water bodies which are spawning/ breeding area of fishes and hence, as per notification, they are CRZ-I.
20. CRZ2011has been made applicable with effect from 06-01-2011. CZMP is being prepared on CRZ2011 at that time the plan prepared on the basis of 1991 Notification would be 'in force'. Coastal Plan prepared on the basis of 1991 Notification, clearly shows Vettila Thuruthu as 'FO'. We do concur with the view of the High Court that islands could be coastal stretches of river or backwater or backwater islands in Kerala are clearly covered by CRZ-I. It cannot fall under either on CRZ-III or CRZ-IV. We also fully endorse the view of the High Court that even before the Salinity Test was incorporated in the year 2002, reliance was placed on that test, on the basis of 5 ppt, which was made as per standard measurements technique in Pails per thousand. Satellite imagery is also, in our view, is one of the best scientific indicators to know, when was the construction effected in violation of CRZ which, in our view, has been correctly applied in this case. 21 We, therefore, find no illegality in the Map prepared by CZMP as well as the techniques employed to ascertain works/constructions have been made in violation of CRZ1991as well as 2011.
10. It is here that the objection has been raised, namely that in view of the said judgment, the judgment of this court may not survive and it may not be open to this court to review or to hold anything contrary to what is laid down in the judgment of the R.P.No.776/13 & Conn. cases 7 Apex Court.
11. In regard to the effect of dismissal of special leave petition on review petitions, it the subject matter of a number of decisions. Suffice it is if we refer to a few of them.
12. A three Judges Bench of the Apex Court, in Kunhayammed and Others v. State of Kerala and another (2000) 6 SCC359considered the matter at length and laid down as follows : "44. To sum up our conclusions are:- (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Art. 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject- matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying of affirming the order put in issue before it. Under Art. 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be R.P.No.776/13 & Conn. cases 8 applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Art. 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-r. (1) of R. (1) of O. 47 of the C.P.C. " 13. If we were to go by the same, there can be no merger of the judgment of this court with judgment of the Apex Court. At the same time in terms of the statement of law contained in R.P.No.776/13 & Conn. cases 9 clause(v), it becomes declaration of law under Article 141 of the Constitution. The finding would also bind the parties, which in this case would mean that the island owners who filed the special leave petition, which was dismissed. Further question is whether the court, tribunal or authority whose orders were subjected to challenge by filing SLPs, namely, this court is bound. This Court has pronounced a common judgment wherein also the same issue arose namely, therein also the island was shown as FP and was found liable to be classified as CRZ-I. What would be effect of the same? 14. It is the contention of the review petitioners that the purport of the review petitions is to bring the new materials which were discovered, which would warrant this court entering the factual finding in regard to the island that it cannot be treated as filtration pond and that it cannot be also brought under CRZ-I otherwise. The judgment of the Supreme Court does not bar such an exercise, it is contended. Drawing support from Kunhayammed's case, it is submitted that what is binding on persons who are not parties to special leave petition is only the declaration of law on the point. In this regard, reliance is placed on 2012 (10) SCC1 The law declared is the principle culled out R.P.No.776/13 & Conn. cases 10 on a reading of the judgment as a whole in the light of the questions raised, upon which the case is decided. It is contended that the judgment of the Apex Court is a judgment not in rem and in this regard reliance is placed on the statement in the judgment to the effect inter alia that the court was concerned with legality or otherwise of the map 32A of CZMP and inclusion of island owners property and whether there is illegality in the preparation of the map.
15. In regard to the further question as to whether the Review petitions in these cases would be maintainable in view of the fact that they are filed after filing of the special leave petition by the review petitioners, it is contended that the law does not forbid the consideration of the review petitions. It matters little whether the review petitions were filed first or SLP is filed first, it is contended. What matters is whether SLP has been disposed of qua the party. In this regard reliance is placed on the judgment of the Apex Court reported in Kapoor Chand and others v. Ganesh Dutt and others 1993 Supp (4) SCC432 wherein the court held as follows : "The High Court was not right in dismissing the review petition on the ground that in view of special leave petition having been filed against the judgment sought to be reviewed, the review petition was no R.P.No.776/13 & Conn. cases 11 longer maintainable because the judgment of the High Court would merge in the order of this Court. The question regarding merger of the judgment under review in the order of this Court would have arisen only after this Court had considered the special leave petition on merits and had passed an order on the matters dealt with in the judgment of the High Court. Till such an order was passed by this Court, it was competent for the High Court to review its judgment and the review petition could not be dismissed as not maintainable merely because special leave petition had been filed against the said judgment before this court and was pending." in (2001) 5 SCC37K. Rajamouli v. A.V.K.N. Swamy we notice the following statement of law : "We are in agreement with the view taken in Abbai Maligai Partnership Firm that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable." 16. Next it is contended that expert suppressed the relevant expert report which amounts to fraud. In this context, reliance is placed on judgment of the Apex Court reported in Meghmala and Others v. G. Narasimha Reddy and Others 2010(8) SCC383 Therein the court took the view inter alia that R.P.No.776/13 & Conn. cases 12 the court has inherent power to recall its own order, obtained by fraud, that the order so obtained is non est. Reliance is placed on the judgment of the Apex Court in A.V. Papayya Sastry and Others v. Government of A.P. And Others 2007(4) SCC221 wherein the court inter alia held as follows : "38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.
39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior." 17. The respondents on the other hand would draw our R.P.No.776/13 & Conn. cases 13 attention to a judgment reported in AIR1999SC1486A.S. Abbai Maligai Partnership Firm and another, appellants v. V.K. Santhakumaran and others, respondents, wherein a Bench of three judges inter alia held as follows : "4. The matter in which the learned single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self-same order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7-1-87 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who indulged in vexatious litigations. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs.10,000/- as costs." 18. No doubt, the said judgment is sought to be explained R.P.No.776/13 & Conn. cases 14 by pointing out that related to a party who had filed SLP which was dismissed and then moving the High Court in review. We further notice that the said judgment is rendered prior to Kunhayammed's case in which later case the Apex Court took the view that even if an SLP is dismissed giving reasons, there will be no merger. No doubt, if SLP is dismissed with reasons in terms of what is stated in clause (v) of the conclusions in Kunhayammed's case, certainly the same would be applicable.
19. We also notice the judgment reported in 2012 (5) SCC398Sunil Kumar v. State of Hariyana, wherein it is held inter alia as follows : "9. Learned counsel for the petitioner placed a very heavy reliance on the judgment of this Court in Kunhayammed & Ors. v. State of Kerala & Anr., wherein this court has held that in case the special leave petition is dismissed by this Court in limine, the party aggrieved may file a review petition before the High Court. The said judgment has been explained in various subsequent judgments observing that in case the review petition has been filed before the High Court prior to the date the special leave petition is dismissed by this Court, the same may be entertained. However, a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the court. (See: Meghmala v. G. Narasimha Reddy)." 20. The said observations are sought to be explained with reference to the earlier decision referred to, that the embargo R.P.No.776/13 & Conn. cases 15 would not apply if what is done is to file review petition when SLPs are pending.
21. It is also brought to our notice that noticing the conflicting views in regard to the question whether the review petition would lie after dismissal of SLP, a two Judges Bench has referred the very same question to a larger Bench by order reported in JT2012(10) SC559Khoday Distilleries Ltd. & Ors v. Mahadeswara S.S.K Ltd.
22. As far as this court is concerned, we would think that Kunhayammed's case being the later decision we may have to follow the same under Article 141 of the Constitution (See the Judgment of the full bench of this Court in ILR20113) Kerala 155). If that be so, apart from the fact that SLPs arose from the other writ petitions relating to another island filed by the parties therein, even if reasons were given, it may not amount to merger as such and hence the review may be maintainable.
23. The further question would be whether filing of the review petitions after the filing of the SLPs would affect its maintainability? In this regard we would think that mere filing of the SLP as such may not bar the filing of the review petition. It is not as if when the review petitions are filed, the SLPs filed by the R.P.No.776/13 & Conn. cases 16 petitioners have been disposed of. In Sunilkumar's case in 2012 (5) SCC398 it turned on the special facts which involved two special leave petitions being filed, one against the order convicting the petitioner therein which was dismissed and the second against the order by which the petitioner was denied the benefit of section 360 of the Code of Criminal Procedure and section 4 of the Probation of Offenders Act. Even in Meghmal's case what is stated is : "Thus, the law on the issue stands crystallised to the effect that in case a litigant files a review petition before filing the special leave petition before this Court and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the special leave petition, the process of filing review application amounts to abuse of process of the court." and it also turned out on a set of facts which would show that the petitioner was disentitled to file the belated review petition which amounted to an abuse of process of Court.
24. The further question would be the effect of the order of the Apex Court in Vaamika Island's case and also the basis on which review is also sought to be maintained. It is true that there is a report by a committee. The expert who gave statement in this case was a member of the committee. The report which is R.P.No.776/13 & Conn. cases 17 produced as annexure-A inter alia reads as follows: "Report of the Committee to review the recommendations of the report on Mulavukad Grama Panchayat and examine the possibility of recategorisation of Pokkali fields and banks from CRZ I(i). REPORT1CRZ category of Pollaki fields (Filtration ponds )- a relook. Filtration ponds are known as Pokkali fields are low lying fields adjacent to the Vembanad backwater (Kerala, South India) which is influenced by tidal action. These are spread over Alappuzha, Kottayam, Ernakulam and Thrissur districts of Kerala. Being influenced by tidal action, the banks of these are part of CRZ. In the CZMP of Keala the CRZ on the banks of Pokkali fields/Filtration ponds are categorized as CRZ1i) (CZMP, 1995). There are a few grama panchayats such as Ezhikara, Mulavukad, Kadamakudi, Pallipuram, Kuzhippilly, etc in the State where more than 75% of the panchayat is Filtration pond (Pokkali field). These panchayats and the communities residing have requested the Kerala State Coastal Zone Management Authority (KCZMA) on many occasions to review the categorisation of CRZ on the banks of Filtration ponds since these are areas where paddy cultivation and fish/prawn culture are alternately practiced for livelihood and would not come under CRZ1i) category as defined by the CRZ Notification. The difficulties in getting permission to construct dwelling units in areas traditionally inhabited by the local communities due to certain provisions in the CRZ notification and the CZMP of the State was again brought to the notice of KCZMA by Mulavukad panchayat. In an earlier occasion, the Chairman, Cochin Port Trust has made a similar request in 2006. The KCZMA deputed a team to look into the issues related to CRZ pertaining to Mulavukad panchayat. The panchayat consists of islets in the Vembanad backwater having extensive areas of Filtration ponds. The team visited the panchayats and found that the communities comprise of 'ecosystem people' who are culturally, traditionally and occupationally part of the island system. Based on the observations and interaction with different sections the team R.P.No.776/13 & Conn. cases 18 suggested that the local communities need to live there itself to pursue their livelihood activities and to sustain their traditional and cultural inheritance. The KCZMA considered the above site inspection report and decided to have a detailed assessment of its recommendations. A sub- committee with Prof.(Dr.)B.Madhusoodana Kurup, Director, School of Industrial Fisheries, CUSAT & Member, KCZMA as Chairman and Dr.K.V.Thomas, Scientist, CESS and Dr.Kamalakshan Kokkal (Convenor), Principal Scientific Officer, KSCSTE as members was constituted to review the recommendations on issues such as the construction of dwelling units for inhabitants and examine the possibility of re-categorisation of the CRZ of Pokkali fields and study the other issues mentioned in the report on a more detailed and scientific basis." He further notice that : "Pokkali fields/Filtration ponds Pokkali is a variety of rice which is salinity tolerant, resistant to flooding and soil acidity. Pokkali fields or Filtration ponds could smoothly and effectively alternate between paddy (pokkali) and shrimp culture. Manu communities living in the saline coastal areas of Kerala depend on pokkali fields for their livelihood. Pokkali fields/Filtration ponds are part of estuary/backwater system which are artificially separated from the backwater system by mostly earthen bunds of width about 1-2 m. Shrimp/Prawn culture The fishing in the backwaters is fully tide dependant. The availability of shrimps and fishes are fully based on the tidal variations. The low lying fields adjacent to the Vembanad lake (Kerala, South India), part of them reclaimed from the lake for rice cultivation, were traditionally used for trapping and growing wild shrimps and fishes during the saline summer months. This practice is known as Pokkali shrimp culture. This is an age old practice where shrimp and fishes are cultured in integration with rice on a rotational basis, a system which is well acclaimed for its sustainability (Thampy, 2001). When salinity reaches high levels during December-March R.P.No.776/13 & Conn. cases 19 the same Pokkali fields used as paddy fields during monsoon, are used for shrimp/prawn culture. Reasons for categorising banks of Pokkali fields under CRZ-I(i) in the CZMP The CRZ I category as per the CRZ Notification also includes 'areas close to spawning and breeding grounds of fish and other marine life' and 'areas likely to be inundated due to rise in sea level consequent upon global warming'. In the CZMP of the State approved by the Govt. of India in 1996, filtration ponds/pokkali fields have been considered as spawning and breeding grounds and being low lying the banks of these were taken as liable to be inundated by the expected sea level rise resulting from global warming. Accordingly the CZMP of the State categorised the banks of filtration ponds/pokkali fields as CRZ1i) Scientific scrutiny of CRZ1i) categorisation of banks of Pokkali fields The reasoning for categorising banks of Pokkali fields under CRZ1i) needs scientific scrutiny. From a purely pro-environmental consideration this categorisation needs to be appreciated. However, the reasons given for the categorisation do not have sufficient scientific back up and the categorisation was not strictly as per the provisions of CRZ notification as shown below :
1. Spawning and breeding grounds 1. No brackish water/marine fish/shrimp will breed under confined water bodies and therefore Pokkali fields, which are confined water bodies, cannot serve as the breeding grounds of fin and shell fishes.
2. On account of the above scientific reality, captive breeding technology was developed in brackish water/marine fin and shell fishes for seed production for aquaculture and natural stock enhancement.
3. The following adds to the above observation (1) R.P.No.776/13 & Conn. cases 20 a) Pokkali fields are usually stocked from the seed procured from hatcheries and not from the recruits from the same field. b) But for the trapping and holding of the seeds entering in to the Pokkali fields from the natural waters during the high tide, Pokkali fields are not characterised by autostocking.
4. Since the Pokkali fields (Filtration ponds) are not serving as spawning grounds of local species of marine/brackish water fin and shell fishes, the inclusion of 50 m buffer zone landwards from the HTL of Pokkali fields as CRZ1i) in the KCZMP is not backed by sufficient scientific reasons from fisheries/living source management points of view and hence needs to be corrected.
1. The categorisation of the banks of filtration ponds/pokkali fields as CRZ I(i) is not followed in the CZMP of any other coastal state or Union Territory, though traditional rice cum shrimp farming is practiced in the rice fields cum shrimp farms in all other states of India which are known as Bheries in West Bengal, Khazen lands of coastal Goa and Khar lands of coastal Karnataka.
2. There is no sufficient justification to introduce and maintain such a provision that 50 m zone landwards from the HTL of Pokkali fields is CRZ1i) in the Kerala State CZMP alone. The categorisation as CRZ1i) needs to be corrected." 25. The report also shows that the committee took the view that based on the available information it can be inferred that banks of Pokkali fields may not be liable to be inundated by the expected/projected Sea Level Rise and hence the inclusion of 50 m zone landwards from the HTL of Pokkali fields as CRZ-I(i) in the KCZMP needs to be corrected. It is also stated that categorisation of the banks of filtration ponds/pokkali fields as CRZ-I(i) is not followed in the CZMP of any other coastal state or R.P.No.776/13 & Conn. cases 21 Union Territory, though traditional rice cum shrimp farming is practiced in the rice fields cum shrimp farms in all other states of India which are known under various names. Finally, the recommendations are to be found as follows: "1. The banks of filtration ponds/Pokkali fields of kerala need not be categorised as CRZI(i).
2. The categorisation as CRZI(i) existing in the KCZMP with respect to the banks of Filtration ponds/Pokkali fields requires correction.
3. The CRZ on the bank of Filtration Ponds/Pokkali fields of Kerala needs to be CRZ III.
4. The categorisation will remain the same if any of the banks of Filtration Ponds/Pokkali fields have been categorised as CRZ I(i) for any reason specified in the notification other than being on the banks of Filtration ponds.
5. The KCZMA may decidie to correct the erroneous categorisation of the banks of Pokkali/filtration pondss as CRZ I(i) in the CZMP of the State. The cecessary corrections may be incorporated in the CZMP and the same may be communicated tot e Ministry of Environment and Forest (MoEF)." 26. It would appear that in the 32nd meeting of Kerala Coastal Zone Management Authority dated 6th October, 2009 the said report was approved (see Annexure-B). It is the further case of the petitioners that in the 33rd meeting of the State Authority, it considered the action taken report and it is mentioned that the report was forwarded to Central Government on 2.11.2009. It R.P.No.776/13 & Conn. cases 22 also stated that the Chief Minister ordered for taking steps for recategorising the CRZ III areas in the State of Kerala to CRZ-II areas. While the National Authority considered the proposals, it is decided at its meeting on 25.6.2013 that in several cases, where areas have been wrongly classified those proposals have to be incorporated by preparing Coastal Zone Management Plans and that the proposals for reclassification should be returned to the respective State Authorities (See Annexure-D). It is also pointed out that by Annexure -H notification dated 20.12.2013 the State Authority has been empowered to examine the proposals for changes or modifications in classification of Coastal Regulation Zone Areas and in the Plan received from the State Government and make specific recommendations for the National Authority.
27. It is contended further that these materials would show that not only the expert who made the statement which was relied on by this court incorrect, he had misrepresented facts. Had these materials been placed before this Court, the view regarding the classification of the island as CRZ-I would not have been taken. It is also submitted on behalf of the petitioner that if it is brought under CRZ-III then it could have availed of the right to approach the authority for permission to put up the construction R.P.No.776/13 & Conn. cases 23 in terms of the guidelines, for construction of beach/hotel resorts. It is also pointed out that this court when subsequently appraised of the facts, at any rate must place the island in the correct category as otherwise it would also remain under CRZ-I erroneously, foreclosing the benefits which may accrue to the company on account of alterations which may be made, in regard to CRZ-III.
28. Firstly while considering the question, we must first consider that the common judgment was pronounced by us in a batch of Writ Petitions, entertained under Article 226 of the Constitution. The power to review flows from the inherent jurisdiction under Article 226. Order 47 of the CPC as such will not apply in view of the explanation under section 141 of the Code of Civil Procedure. But the principles would be whether there is an error apparent and whether it is to be entertained for undoing any injustice.
29. It is in this context, we cannot completely ignore the finding of the Apex Court in Vaamika's case though it was in an SLP filed by the island owners relating to another island. Undoubtedly, we have considered the issue on the basis of the objection raised by both the parties. The common judgment was R.P.No.776/13 & Conn. cases 24 rendered and it repelled objections to the classification of the island as FPs and approved the classification of islands as CRZ-I. The said view has found approval at the hands of the Apex Court. The Court found that there is no illegality in the map, prepared by the Coastal Authority. It is found specifically that FPs, as already indicated are shallow water bodies which are the spawning and breeding areas of fishes and hence as per the notification they are "CRZ-I". It is also noticed that the plan was prepared based on the guideline of the Ministry taking care of maps of Survey of India and Cadastral maps were used as base maps.
30. No doubt, learned counsel for the petitioner attempted to persuade us to discard this as finding of facts with reference to island therein. At any rate, we would think that even otherwise, the review petitions do not deserve to be entertained. The review petitions are premised on the report of the expert committee. The Expert committee has given certain findings. It may also true that State Authority has accepted it and forwarded it to National Authority. The National Authority has remitted it back for consideration by the State Authority itself. We must ask the question what is the sanctity of this report? No doubt it is purported to be prepared by the experts. We have noticed that R.P.No.776/13 & Conn. cases 25 the report itself actually emanated on complaints by certain Panchayats. Apparently there was complaint in respect of the Panchayat where the residents were prevented from putting up residential buildings on account of the restrictions. The report does not show as much that any study was conducted as such in the island in question. No doubt, it is petitioners' case that when what is stated is that islands cannot be shown as FPs it must apply across the board wherever it is so shown in the plan and should not be limited to panchayats in which study was conducted as such at any rate.
31. Respondents also pointed out that this report has no legal sanctity as it has not been accepted and at the best it is pending consideration. It is also submitted that at the time when constructions were done certainly categorisation as CRZ-I prevailed. But the contention of the review petitioners is that if it is found as found by the expert committee, that there is no basis for classification as filtration ponds or low lying lands it would have real bearing on the relief sought by the Company, namely that map was prepared contrary to the notification and without any basis.
32. We would think that even if we would have to take the R.P.No.776/13 & Conn. cases 26 report as material which was not available and not considered when the writ petitions were considered, by itself, it may not have the effect of displacing the finding which we have rendered in the matter. Even in the report we notice that there is reference to shrimp being trapped and grown. There is a case for the respondents also that apart from shell fish and fin fish other forms of fish and marine life are grown in the area. Actually, there is also case for the respondents that the report does not relate to the islands as such and they relate to the parts of main land.
33. We cannot also over look the fact that we have considered the aspect that the company filed the writ petition seeking relief it did with considerable delay, namely the Writ Petition was filed in the year 2012 even though the permits were issued to it in the year 2007 with conditions which we have already adverted to in our main judgment. We cannot ignore the fact that we have also held that the island would fall otherwise in CRZ III and therein the construction would be impermissible. We also notice that in the recommendation of the committee the CRZ on the bank of filtration ponds/pokali fields of Kerala needs to be in CRZ-III. No doubt here the petitioners have a case that R.P.No.776/13 & Conn. cases 27 constructions could be regularised as it were and also it is important that at any rate property of the island was properly classified for all times. Admittedly, the company has not sought or got permission for the construction as would appear to be contemplated under the guidelines. We would think that the report would essentially be the expression of an opinion. No doubt the expert had taken the view that the reasons given for categorisation do not have sufficient scientific back up. But that itself show that there were reasons given earlier.
34. We also find that no merit in the contention that, because of there was misrepresentation and fraud and therefore the judgment is vitiated. The expert who gave the report is not really a party as such. The concept of fraud as delineated in 2010 (8) SCC383involves two elements namely deceit and injury to the person deceived. It is a cheating intended to get an advantage (see para 33).
35. An attempt is made to bring it as fraud on the basis that the statement was a false representation made knowingly and at any rate recklessly having regard to the membership of the expert committee attributed to Shri. K.V. Thomas. Suppression of the material fact is also fraud, it is contended. In fraud we must R.P.No.776/13 & Conn. cases 28 not ignore that there must be an element of deliberateness and there must be an intention to get advantage and cause injury to the person deceived. We are unable to attribute any such intention as such. In fact questions were asked at the instance of the Company also. He was not given an opportunity to address on the issues and he only gave answers to the questions put by us. We see no merit in these petitions. They are dismissed. Sd/- K. M. JOSEPH, JUDGE Sd/- K. HARILAL, JUDGE. Sou. // True copy //