Coastal Regulation Zone laws why it failed in Kerala

sahasram@gmail.com 

Short History of the CRZ

The Government of India has issued the so-called “Coastal Regulation Zone (CRZ) Notification, 1991” for the purpose of protecting the coastal ecology. Water bodies affected by tidal waters are to be marked as CRZ. Every State has to identify such areas and classify it as CRZ-I, II or III and prepare a Coastal Zone Management Plan (CZMP). It is at that time MC. Mehta approached the Hon’ble Supreme Court which issued directions to prepare the CZMP. An interim order was issued on 12-12-1994 halting all constructions upto 500 meters from the High Tide Line. This was slightly modified on 09-03-1995  permitting constructions as per the Notification. Finally when the case was disposed for directing the coastal states to finalise the CZMP and get it approved from the MOEF. 

Coastal Zone Management  Plan Preparation

Hon’ble Justice Kudip Singh of the Supreme Court was very strict in environmental matters. He initiated contempt action against many states including the Kerala. The Government of Kerala has entrusted the job of preparing the CZMP to the Centre for Earth Science Studies. They have prepared the CZMP by available data. No separate study was conducted to identify and classify areas. Some point was fixed as tidal waters. The classification was done over the time classifying  the entire areas in Grama Panchayats’ as Category-CRZ-III (undeveloped areas). 

Where is the modified CZMP as directed by MoEF ? 

But the MoEF which considered the CZMP for various reasons . It directed the Kerala State to categorise areas which are substantially built up or buildable plots to that of total plots is more than 50% then such areas have to be classified as CRZ-II. Such directions were issued because the draft CZMP of Kerala has categorised entire Panchayats as CRZ-III without looking into the aspect of whether they are developed or not. 

It may be noted that CRZ Notification, 1991 does not insist on the classification of the entire Panchayats as CRZ-III. It all depends on whether an area is developed or not. If an area is not developed then such areas are to be classified as CRZ-III though it is in Municipality which is categorised as CRZ-III. It is the parks, playgrounds, green zones and other open spaces that are to be classified as CRZ-III not the buildable areas in Panchayat. It is because of the said reason direction  No. XVI has been made. There are special conditions (actually directions) imposed for categorising the buildable areas. Several other errors were pointed out. The Government of Kerala was specifically directed to redraft it and send it for approval. Till today such an exercise has not been done by the Kerala State.

Had the say CZMP’s were prepared many of the people would have been able to build houses and many of the violations not pointed out should not have been there. Now the unapproved CZMP Maps are relied on by the Coastal Authorities, without incorporating the changes as directed by the MoEF &CC.  Had they incorporated the changes it should have been shown the entire areas of Maradu  Grama Panchayath as CRZ-II (Developed area) in the CZMP of 1996. 

CZMPs of 1996 are against SC judgment 

Supreme Court has struck down the amendment made to the CRZ Notification in 1994 which reduced the distance rule from 100 meters to 50 meters. Whereas the Map of 1996 shows the distance as 50 meters instead of 100 meters. 

Identification of areas not possible with the CZMP of 1996. It is prepared on the ratio of 1:12,500 scale. When the construction of Lakeshore Hospital was questioned in the Kerala High Court, the Kerala High Court held that “the actual status of the disputed construction can be ascertained only with the help of the large scale map which has not been prepared for this purpose. The present Plans are on the 1:12,500 scale and it is difficult to identify the lands. The Addl AG submitted that the cadastral plans are under preparation.” 

Where are the cadastral plans prepared in 1:4000 scale. The question was again raised before the Kerala High Court in the case of the construction of resorts on two islands, Vettilathuruth and Nediyathuruth. There are no documents before the Court to identify the said islands. A contention based on the Lakeshore Hospital case was raised stating that no cadastral plan was prepared. But the Court summoned an expert from the CESS. Dr.K.V.Thomas was examined. The Kerala  High Court has stated in the judgment that ‘‘in answer to the question as to why the island in controversy is not earmarked,the answer was that Nediyathuruthu island is shown as the filtration pond and the maximum width of the land part is 50 metres. With this scale of the map, it is cannot be identified. It is stated that the filtration pond is marked in the land part and the entire land parts will be CRZ i.e. Coastal Regulation Zone. 

The High Court has found that it is the duty of the project proponent to prepare the cadastral maps and therefore found them against law and demolished it. One of the matters is still pending. 

Why did the CRZ implementation fail?

Identification and classification of CRZ areas are different and difficult task that requires scientific studies. Identification is a process by which the coastal water bodies up to which saline water ingresses are to be found. For this, a physical verification throughout all seasons is very much essential. No scientific study has been conducted to ascertain the ingress of the salinity in respect of any of the 44 rivers in Kerala.  The salinity also changes due to tidal influence. Therefore the making of the salinity ingression line should be determined by the average entry of saline water throughout all seasons. Thus a minimum of one year of study is very much essential to identify the salinity ingression level.

Classification of CRZ areas into four categories is the second important task. As per the 1991 notification the ecologically sensitive and important areas have to be classified as CRZ-I. The developed areas have to be identified. The municipal areas can automatically be classified as CRZ-II areas, but areas within municipal which are not developed have to be categorized as CRZ-III. The identification of areas that are not developed has to be ascertained from physical presence or obtained from the concerned Municipality or Municipal Corporation or Grama Panchayat so as to classify them as CRZ-III. The CESS instead of conducting any study on the developments that have taken place categorised the entire Panchayat areas in the State as Category-III, CRZ-III. It is profitable to note that CRZ Notification does not contemplate the classification of the entire Panchayat areas as underdeveloped areas, Category-III. But in Kerala alone, the entire 200 Grama Panchayats located near the sea, bay, estuaries, backwater, etc. are classified as CRZ-III.  

Expert Opinion that no CZMP prepared 

The improper identification of CRZ areas and the non-preparation of revised CZMPs have been pointed out by experts like Prof.M.S.Swaminathan has been asked by the Government of India to conduct a study on the implementation of the CRZ 1991 notification. He has clearly stated in his Report as follows:-

3.4.25 Preparation of Coastal Zone Management Plans

In compliance with the Supreme Court Orders vide Writ Petition No.664 of 1993 the State Governments had prepared the Coastal Zone Management Plan maps within period of 3 years. Such a hurried exercise undertaken by the State Government for the fulfilling the Court direction contains lots of mistakes and factual errors. The Ministry also, in order to comply with the Court directions, approved these Coastal Zone Management Plans on 27th September, 1996 with certain conditions and modification and directed the State Governments to submit the revised management plans within a period of 3 months. However, till date no State Government has submitted the revised CZMPs for the entire states as per the procedure laid down in the CRZ notification. In the absence of such approved revised CZMPs is very difficult for a developer to undertake developmental activities in the coastal area. Further, lack of clarification in the notification with regard to the categorization, High Tide Line demarcation, scale of the maps have led to further confusion.

It is on the basis of the said Committee report Government of India issued a fresh notification on 06-01-2011. This notification mandates the preparation of a new CZMP for the sole reason that the earlier one of 1996 is not in tune with the CRZ Notification, 1991. The 2011 notification contains a separate chapter, Annexure-.I, prescribing guidelines for the preparation of CZMPs. It mandates people’s participation. A meaningful public hearing is also mandated. But this time also the State kept quiet and this the National Green Tribunal has started cracking the whip. The authorities started preparing better MAPs, But no steps were taken to identify the developments that have taken place. With the help of satellite images, fresh maps were prepared. 

CZMPs of 2011 Notification is improper, why?

This time due to the contempt proceedings by NGT the authorities have not considered any of the objections. In a PIL filed by Kaloor Joseph, the Kerala High  Court was monitoring the preparation and found that it is not done properly. A statement was made in High Court they cannot reclassify the developed panchayats as CRZ-II. Whereas the Sri.P.H.Kurian, the then Additional Chief Secretary to Government sent a letter to the Government of India to classify the  136 coastal census towns as CRZ-II (developed areas). What happened to this letter? Is it the decision of the Government, it is under consideration? 

The Maps to be prepared in a more democratic manner by the CRZ Notification, dated 6-1-2011 were done after 8 years and got approved on 28-02-2019. Several objections were raised in the said PIL. The Court instead of correcting the said Map felt that the new one as contemplated by the CRZ Notification, dated 18-1-2019 be prepared properly. The GOK was directed to take every endeavour to complete the task in 5 months, as against the normal time fixed by the Government of India. To assess the work done by the NCESS and KCZMA they posted the case in 1st week of December.

Why both the Coastal Maps are going continuously wrong? 

1. Revenue records are ignored.

The maps are not demarcating the HTL properly. In so far as Kerala is concerned the revenue maps will show the boundary between the waterbody and the land. But whereas the Coastal Authorities are not prepared to accept the said revenue records. They simply rely on satellite images. This is an absolutely wrong interpretation of the law. Even though your property is away from the coast, if your neighbour takes coastal water into his property, then you are in trouble. The Map will show the said boundary between your property and his property as HTL and you cannot make any construction on your land. Such depending on satellite images are wrong deprecated by the Courts several times. Supreme Court of India has reiterated the principle that “satellite images tell us how things stand at the time of images were taken.“.  Whereas revenue records, title deeds, and Thandaper registers etc will show the nature of land otherwise. 

The same issues are also in the case of mangrove areas. Mangroves will grow faster. It will enter the land if the bund separating it is broken. But the title deeds and revenue records will show it as land. 

2. Classifications not done on ground truth

The double standards adopted by the Coastal Authorities in categorizing the Panchayats as a rural area for CRZ Notification, 1991 and 2011 notification is very much clear from the stand taken before the Hon’ble Supreme Court of India in Abkari Cases.  Hon’ble Supreme Court of India, considering the public safety, has prohibited the granting of licenses for the sale of liquor along national and State highways.  This caused a lot of difficulties for the States? The Government of Kerala was of the view that the Panchayats in Kerala are developed and have the qualities of Municipalities. The Government of Kerala has filed an affidavit before the Hon’ble Supreme Court of India to the effect that though Kerala is a small state having a total area of 38863 sq km and the density of population is in Kerala is 859/sq km whereas the average Indian population is 382/sq km. The geographically the Kerala state is different from other states. It is stated therein that the Kerala State is consisting of Municipal and Panchayat areas, Kerala as a whole has to be considered as one city due to its peculiar nature. The infrastructural facilities available to the population, in general, do not vary much between rural and urban. Therefore it is prayed by the Government of Kerala to treat the Panchayat areas as Municipal areas. The Court accepted the said stand modified the order.

Whereas when the Coastal Regulation Zone restrictions are concerned the State is not prepared to take the same development scale to fix the CRZ status. Identification and classification of coastal areas are very much essential for the implementation of CRZ Notification, 1991/2011/2019. Unless the Maps are prepared properly the said law cannot be implemented. CZMP is part and parcel of CRZ notification, like twins, they cannot be separated in the eye of the law. In the absence of CZMP, the provisions of CRZ cannot be implemented. The said thing happened in the case of Maradu Municipality whereas everyone believed it is CRZ-II developed areas wherein constructions can be carried out.  But the Technical Committee relied on the unapproved Maps and said that it is CRZ-III. Had the Maps been amended as directed by the letter dated 27-09-1996, the report would have been otherwise. 

What Kerala requires is a proper Coastal Zone Management Plan in accordance with the 2011 notification and a reconsideration of the developments taking place during the interregnum and action, if there is a violation, of course, action should be taken. You cannot expect the people to obey a law that they cannot understand. If the coastal restriction says that the restriction is from ten meters from the river boundary everyone who is having river boundary knows from where the measurement is to be taken instead of the High Tide Line. No person will deliberately violate any law of this Country. Unless the public knows the law you cannot expect them to obey it. 

If Maradu people are suffering it is a lack of good governance on the CRZ implementation. Different interpretations are given on different occasions interpreting the provisions. If the Supreme Court has imposed a penalty on the State it is only due to the lack of responsibility shown by them in implementing the provisions of the coastal protection laws which is very much essential for a state which has a wide coast supporting backwater. 

The only solution is to prepare the new CZMP as contemplated under the CRZ Notification, 2019, properly with the “real” people’s participation in an understanding manner.