Disposed

M/S.Jeevan Ayurvedic Beaach Resort v. State of Kerala

Kerala HC6 Dec 2011WP(C)/22750/2006

Case brief

AI extract

What is this about?

The High Court of Kerala, led by Justice S.Siri Jagan, disposed of a writ petition regarding construction violations. The court held that the petitioner failed to prove CRZ-II status for their resort. It directed the Coastal Zone Management Authority to determine the classification in a separate petition.

What did the court decide?

Petitioner directed to approach Coastal Zone Management Authority; Authority to decide classification within two months.

M/S.Jeevan Ayurvedic Beaach Resort Vs State of Kerala — Environment and Pollution | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933

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WP(C).No. 22750 of 2006(G)

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PETITIONER:

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M/S. JEEVAN AYURVEDIC BEACH RESORT, NEAR LIGHT HOUSE BEACH, REP. BY ITS PROPRIETOR N.SUDHAKARAN, AGED 57 YEARS, SANTHA SUDHA, BEACH ROAD, KOVALAM P.O., TRIVANDRUM-695 527.

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BY ADV. SRI.P.GOPINATH

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RESPONDENTS:

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1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO THE GOVT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE SECRETARY, DEPARTMENT OF TOURISM, GOVT. OF KERALA, THIRUVANANTHAPURAM.

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3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.

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4. THE VIZHINJAM GRAMA PANCHAYAT, REP. BY ITS SECRETARY, VIZHINJAM.

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5. THE COASTAL ZONE MANAGEMENT AUTHORITY (KERALA), SCIENCE TECHNOLOGY & ENVIRONMENT DEPARTMENT, SHASTRA BHAVAN, PATTOM, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER, SRI. NOBLE MATHEW ADV. SRI.K.M.SATHYANATHA MENON FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22750 of 2006(G)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1	: TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYAT TO THE PETITIONER UNDER THE PROVISIONS OF THE PANCHAYAT RAJ ACT, 1994, FOR THE PERIOD UP TO 31.03.2007 DATED 07.04.2006.
EXT.P2	: TRUE COPY OF THE LICENSE ISSUED TO THE PETITIONER TO RUN A RESTAURANT FOR THE PERIOD UPTO 31.03.2007 DATED 07.04.2006.
EXT.P3	: TRUE COPY OF THE BUILDING TAX ASSESSMENT REGISTER OF VIZHINJAM PANCHAYAT FOR THE PERIODS FROM 1983 TO 1988.
EXT.P4	: TRUE COPY OF THE BUILDING TAX ASSESSMENT REGISTER OF VIZHINJAM PANCHAYAT FOR THE PERIOD FROM 1988-89 TO 1992-93.
EXT.P5	: TRUE COPY OF THE BUILDING TAX ASSESSMENT REGISTER OF VIZHINJAM PANCHAYAT FOR THE PERIOD FROM 1993-94 TO 1997-98.
EXT.P6	: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO A NOTICE ISSUED BY THE PANCHAYAT IN DECEMBER, 17, 2005.
EXT.P7	: TRUE COPY OF THE NOTICE ISSUED BY THE PANCHAYAT ON 04.07.2006.
EXT.P8	: TRUE COPY OF THE COASTAL ZONE MANAGEMENT PLAN NOTIFIED BY THE CENTRAL GOVERNMENT FOR KERALA DATED 27.09.1996.
EXT.P9	: TRUE COPY OF THE ORDER DATED 19.07.2004 OF GOVERNMENT OF INDIA.
EXT.P10	: TRUE COPY OF PARAGRAPH 1.2.2. OF THE M.S.SWAMINATHAN COMMITTEE REPORT.
EXT.P11	: TRUE COPY OF PARAGRAPHS 3.4.23 TO 3.4.25 OF THE M.S.SWAMINATHAN COMMITTEE REPORT.
EXT.P12	: TRUE COPY OF PARAGRAPH 6.1.2 &6.1.4 OF THE M.S.SWAMINATHAN COMMITTEE REPORT.
EXT.P13	: TRUE COPY OF THE INTERIM ORDER DATED 14.08.2006 IN W.P.(C) NO.21527/2006.

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RESPONDENTS EXHIBITS:NIL

/TRUE COPY/

P.A.TO JUDGE

S.SIRI JAGAN, J.

W.P.(c)No.22750 of 2006

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Dated this the 6^th day of December, 2011

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JUDGMENT

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The petitioner is the owner of a resort in Vizhinjam. The building housing that resort was constructed prior to the CRZ classification made by the Government of India. Subsequently, CRZ notifications have been issued classifying various places in Kerala. Petitioner wanted to make additional constructions in his land housing the resort. When he started construction, the 4^th respondent Panchayath issued Ext.P6 stop memo directing the petitioner to stop construction, since such construction would violate the CRZ notification issued by the Government of India in respect of the area. Petitioner's contention is that the petitioner's area comes under a CRZ-II area and therefore the petitioner is entitled to make additional constructions towards the landward portion of his land.

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The petitioner therefore, seeks the following reliefs:

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(i) Declare that the Coastal Regulation Zone Notification does not affect the buildings owned by the petitioner, covered by Exhibits

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W.P.(c)No.22750 of 2006 2

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P3 to P5, as these buildings have existed even prior to the said notification;

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(ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the Ist respondent to constitute a committee and suggested/directed in Ext.P7 for providing proper data and inputs to the Government of India in order to ensure the inclusion of the areas mentioned therein in the Coastal Regulation Zone-II classification;

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(iii) Issue an order of injunction restraining the respondents from initiating any action against the petitioner on the ground that the areas where their Hotels, Resorts and other similar establishments are situated is classified as CRZ-III pending action in terms of prayer(i);

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(iv) Declare that in the facts and circumstances of the case, the action of the respondents in proceeding to take action against the petitioner for carrying out periodic maintenance of buildings existing prior to the date of the CRZ Notification, in areas falling within the jurisdiction of the 4^th respondent panchayath on the ground that the area is classified as CRZ-III is illegal, arbitrary and

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W.P.(c)No.22750 of 2006 3

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violative of fundamental rights of the petitioner;

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(v) Grant such other reliefs, order or directions that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;

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For allowing this Writ Petition, I have to necessarily come to the conclusion that the area where the petitioner's resort is situated comes under a particular CRZ classification, which permits construction in the landward side of the land in question. The petitioner has not produced any material whatsoever in support of that contention, in this Writ Petition to show that the petitioner's land comes within a CRZ-II area. As such, I do not think that I can decide the question in this Writ Petition. In the above circumstances, I think that it would only be appropriate that the 5^th respondent-Coastal Zone Management Authority (Kerala) decides that question. In the said circumstances, I dispose of this Writ Petition with the following directions:

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The petitioner shall file an appropriate petition before the 5^th

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W.P.(c)No.22750 of 2006 4

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respondent within a period of two weeks from today. The 5^th respondent shall consider that petition in accordance with the CRZ notification applicable and communicate the decision to the petitioner as well as the 4^th respondent, as expeditiously as possible, at any rate, within a period of two months from the date of the receipt of the petition allowing with a certified copy of this judgment. The petitioner shall be afforded an opportunity of being heard also. At the time of admitting this Writ Petition, this Court passed an interim order as follows:

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“There would be an interim order on condition that the petitioner shall maintain status quo in respect of his property and shall not make any constructions in the property or alterations in the buildings in question.”

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The said interim order shall continue until orders are communicated as directed above.

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Sd/-

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S.SIRI JAGAN, JUDGE

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/True copy/

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P.A. to judge

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