Disposed

Kerala Coastal Zone Management Authority, v. Dr. Xavier Mathew

Kerala HC18 Oct 2023WA/676/2021

Case brief

AI extract

What is this about?

The Court quashed an earlier single judge order granting a building permit renewal. Directing a fresh physical inspection of the property, the Court mandated the assessment be based on the 1996 Coastal Zone Management Plan, not the 2019 plan, conditioned on the validity of pre-existing plans under the CRZ Notification 2011.

What did the court decide?

Permits renewal depend on fresh measurement by committee using the 1996 CRZ Plan; State of Kerala to be retried before this Court.

Kerala Coastal Zone Management Authority, Vs Dr… — Environment and Pollution | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 18TH DAY OF OCTOBER 2023 / 26TH ASWINA, 1945
WA NO.676OF 2021

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APPELLANTS/RESPONDENTS 3 AND 4:

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1 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, SASTHRABHAVAN, PATTOM P.O., THIRUVANANTHAPURAM695 004, REPRESENTED BY ITS MEMBER SECRETARY.

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2MEMBER SECRETARY,
KERALA COASTAL ZONE MANAGEMENT AUTHORITY, 4TH
FLOOR, KSRTC BUS TERMINAL, THAMPANOOR P.O.,
THIRUVANANTHAPURAM-695 001.

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BY ADV M.P.PRAKASH

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RESPONDENT/S:

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1 DR. XAVIER MATHEW, EDAKKATTUKUDIYIL HOUSE, CHEPPANAM DESOM, PANANGAD P.O., KOCHI-682 506.

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2 ANNIE XAVIER, EDAKKATTUKUDIYIL HOUSE, CHEPPANAM DESOM, PANANGAD P.O., KOCHI-682 506.

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3 ASTEN REALTORS PRIVATE LIMITED, 28 ASTEN, NH BYPASS, VENNALA P.O., KOCHI-682 028, REPRESENTED BY ITS MANAGING DIRECTOR- K.A. SIRAJ MATHER.

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4KUMBALAM GRAMA PANCHAYATH,
PANANGAD P.O., ERNAKULAM-682 506,
REPRESENTED BY ITS SECRETARY.

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5 THE SECRETARY, KUMBALAM GRAMA PANCHAYATH, PANANGAD P.O., ERNAKULAM-682506.

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W.A.No.676 of 2021

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*ADDL.R6 IMPLEADED.

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6DILEEP IBRAHIM,
AGED 48 YEARS,S/O. M.IBRAHIMKUTTY, PRESENT
SECRETARY, ASTEN NAUTICA HOME BUYERS WELFARE
ASSOCIATION, CHEPPANAM, PANAGAD, ERNAKULAM
DISTRICT- 682 506. HAVING PERMANENT ADDRESS AT
BIJUMANZIL, KARUVATTTA P.O, ALAPPUZHA DISTRICT,
NOW RESIDING AT PARAPPALLIL VILLA, KARUVATTA P.O,
ALAPPUZHA DISTRICT -690 517.

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*IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED
20/06/2023 IN IA 1/2023 IN WA 676/2021.

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BY ADVS.
RENJITH THAMPAN (SR.)
S.SHANAVAS KHAN
ANOOP.V.NAIR
V.M.KRISHNAKUMAR
N.ABHILASH
PRAVEEN K. JOY
E.S.SANEEJ
T.A.JOY
M.P.UNNIKRISHNAN
M.K.SAMYUKTHA
DEEPU RAJAGOPAL
SANDRA S.KUMAR
BEENA JOSEPH
AVANTHIKA R.
E.ADITHYAN
GOVERNMENT PLEADER (B/O)

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OTHER PRESENT:

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SR.ADV. JOSEPH KODIANTHARA FOR R1,R2;
ADV. MAYANKUTTY MATHER FOR R3;

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.A.No.676 of 2021

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3 JUDGMENT

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Dated this the 18^th day of October 2023

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A.J. Desai, C.J.

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By way of the present appeal filed under section 5 of the Kerala High Court Act, 1958, the original respondent No.3 i.e., the Kerala Coastal Zone Management Authority (hereinafter referred to as “the KCZMA” for short) has challenged the judgment dated 21.12.2020 in W.P.(C)No.20293 of 2020. While disposing the writ petition, the learned single Judge directed the original respondent No.1 i.e., the Kumbalam Grama Panchayat to renew the building permit for the construction upon the land comprised in Re. Sy.Nos.51/14, 39/3, 39/2, 39/5, 39/6, 39/1, 39/11, 39/12, 51/1, 39/13, 39/7, 1/11, 51/5 and 1/7 of Kumbalam Village, Kanayannur Taluk, if the Panchayat is satisfied that the construction sought to be put up by the original petitioners is beyond 50 metres from the High Tide Line (HTL), on consideration of the report of the accredited agency and upon undertaking a physical measurement.

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The short facts of the case are as under:

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The original petitioners 1 and 2, who are the absolute

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W.A.No.676 of 2021

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owners of the land referred to hereinabove, intended to construct a multi-storied residential apartment in the name and style ‘Asten Nautica’. The original petitioners, before commencing the construction works, proceeded to obtain a building permit from the respondent Panchayat and necessary clearances, such as consent/NOC from the Pollution Control Board, Fire and Rescue Services, Aviation Department and such other concerned authorities. The Panchayat issued the building permit on 13.06.2013, whereas the Fire and Rescue Services, Aviation Department and Pollution Control Board issued appropriate certificates in the years 2013 and 2017 respectively.

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It is the case of the original petitioners that in the year 2011, the Government of India, exercising its powers under sub-section (1) and clause (V) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986, issued the Coastal Regulation Zone Notification 2011, in supersession of the earlier notification dated 19.02.1991, except as respects things done or omitted to be done before the supersession. Under the notification of 2011, the Central

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W.A.No.676 of 2021

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5 Government declared certain areas as Coastal Regulation Zones (CRZ) and imposed restrictions on the setting up and expansion of industries, operations and processes in the notified areas. As far as the State of Kerala is concerned, the activities in the CRZ are regulated, taking into account the unique coastal systems of backwater and backwater islands along with space limitations present in the coastal stretches. As per the notification, no construction is permissible within 50 metres width from the HTL on the landward side.

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According to the original petitioners, the building constructed by them is beyond 50 metres from the HTL and, therefore, there was no need to get a clearance certificate under the 2011 notification. It is the case of the petitioners that Clause 5 of the 2011 notification envisages the preparation of Coastal Zone Management Plans. However, it is made clear in Clause 5 (xii) that the Coastal Zone Management Plan already approved by the Ministry of Environment and Forests shall be valid up to 31.07.2018 or till such time as approval is given by

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the Ministry to fresh Coastal Zone Management Plans made

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W.A.No.676 of 2021

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under the 2011 notification, whichever is earlier.

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It is the case of the petitioners that the Coastal Zone Management Plan under the 2011 notification came into existence only in the month of February 2019 and the building having been constructed before the introduction of the new Coastal Zone Management Plan, ie., in the year 2013, the old plan would be applicable in this case. The building being beyond 50 metres from the HTL, the writ petition was filed on the assumption that there is no need to get any clearance under the 2011 notification.

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The petition was opposed by the present appellant contending that the building is within 50 metres from the HTL as per the new plan and therefore, the construction is illegal. The learned counsel does not contest the position based on clause 5(xii) of the 2011 notification that till the new Coastal Zone Management Plan was approved, the earlier plan of 1996 was valid.

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We heard learned Advocates appearing for the respective parties.

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It appears from the records that by order dated

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W.A.No.676 of 2021

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11.08.2022, a Division Bench of this Court passed an order constituting a committee to inspect the subject property and prepare a report. Accordingly, the report has been submitted.

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As per the said report, on the Southern part of the property, the building is at a distance of 6 to 8 metres from HTL. However, the said report is objected to by the original petitioners since the same has been prepared in accordance with the prevailing Coastal Zone Management Plan i.e., of the year 2019. It is contended that in view of clause 5 (xii) of CRZ Notification, 2011, the Coastal Zone Management Plans which were in existence before 2019 would be applicable to the present case.

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We have also perused the report produced on record. As per the inspection report, the committee visited the place on 27.09.2022 and measured the property as per the prevailing Coastal Zone Management Plan of 2019. Hence, we are of the opinion that the same committee constituted as per order dated 11.08.2022 shall again inspect the property and shall submit a report relying only upon the Coastal Zone Management Plan of 1996 and supply a report to the original

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W.A.No.676 of 2021

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petitioners, the present appellant as well as the Panchayat. The committee shall inspect the place in the presence of all parties within a period of four weeks from the date of receipt of a copy of this judgment and submit a report within two weeks thereafter. If the report suggests that the construction is beyond 50 metres of HTL as per the 1996 Plan, the Panchayat shall pass appropriate orders for renewing the permit.

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The writ appeal is disposed of with the above directions.

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A copy of the judgment shall be sent to all members of the committee forthwith.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/- A.J. Desai Chief Justice

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Sd/- V.G. Arun Judge

vpv

//true copy//

P.A. to Judge

W.A.No.676 of 2021

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APPENDIX OF WA 676/2021

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RESPONDENT ANNEXURES

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Annexure R3(a)True copy of the Certificate obtained
by the 1st respondent under the Right
to Information Act from the Kumbalam
Panchayat dated 22.10.2022.

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Annexure R3(b)True copies of the relevant pages of
the basic tax register maintained in
the Village Office, Kumbalam.
Annexure 3 (C)Photographs showing the existence of
residential buildings on the southern
side of the project site.

Kerala Coastal Zone Management Authority, v. Dr. Xavier Mathew

Case brief

What is this about?

What did the court decide?

Kerala Coastal Zone Management Authority, v. Dr. Xavier Mathew

Case brief

What is this about?

What did the court decide?

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