IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 6506 of 2006(Y)
1. NORBERT LAWRENCE,
... Petitioner
Vs
1. KERALA COASTAL ZONE MANAGEMENT AUTHORITY
... Respondent
2. THE CENTRE FOR EARTH SCIENCE STUDIES,
3. KOTTUKKAL GRAMA PANCHAYATH,
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/07/2006
O R D E R
S.SIRI JAGAN, J
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W.P.(C) NO.6506 Of 2006
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Dated this 28th day of July, 2006
J U D G M E N T
The petitioner is a resort owner. He has approached this court
seeking the following releifs.
1) issue a writ of prohibition or other appropriate writ, order or
direction directing respondents 1 and 3, not to disturb any huts
constructed by the petitioner in the 75 cents of properties in
which Aazhimala Beach resorts is constructed, with valid
permission ands permits under No.B-3-15/47/2002-2003 to B-
3-15/50/2002-2003 and B-1/565/531-03-04 to B-
1/565/534/03-04 of the 3rd respondent, pending final decision
of the Union of India, Ministry of Enviornment and Forest on
Ext.P1 and P6 representations.
2) Issue a writ of mandamus directing the 2nd respondent to
consider and comply with the request in Ext.P5 and submit the
report before the 2nd respondent with in a reasonable time.
3) Issue a writ of mandamus or other appropriate writ or order or
direction directing the 1st respondent to forward Ext.P1
application to Union of India as directed in Ext.P3, if the same is
not forwarded to the Union of India.
2. The main thrust of his case is that he has constructed the
buildings for the resort, after obtaining proper permits and license
and therefore, he should not be directed to demolish the same. In
the said circumstances, he seeks a direction, directing the 1st
W.P.(C) NO.6506 Of 2006 2
respondent- Kerala Coastal Zone Management Authority to forward
Ext.P1 application submitted by the petitioner as directed in Ext.P3 to
the Union of India and till Union of India takes a final decision to allow
things to remain as on today.
3. The whole issue relates to compliance with the Zoning
Regulations under the Environment Protection Act. The particular area
where the petitioner’s resort is situated, comes within the CRZ II
category. As per the Zoning Regulations in this area up to 200 meters
from the High Tide Line no development activities can be permitted.
Beyond 200 meters up to 500 meters construction is permissible with
prior permission from the appropriate authority. The petitioner
submits that the petitioner started the construction in 2002 at a time
when the 200 meters High Tide Line was farther away and therefore
the petitioner’s construction was beyond 200 meters. In the above
circumstances, the petitioner’s contention is that if the petitioner’s
constructions does not affect any ecological balance the petitioner
should be allowed to retain the constructions.
4. In this regard there was a long standing litigation between
the 4th respondent and the petitioner. The 4th respondent has now
W.P.(C) NO.6506 Of 2006 3
come up with a counter affidavit refuting all the contentions of the
petitioner. According to the 4th respondent the petitioner is bound by
Ext.P3 judgment in which the petitioner was also a party. In fact, in
view of the said decision the petitioner cannot raise the contentions
which he has raised in this writ petition, according to the 4th
respondent. The 4th respondent would contend that in compliance with
Ext.P3 judgment, the 1st respondent in this writ petition had inspected
the area in the presence of all concerned, including the representative
of the Panchayat,the petitioner and the 4th respondent and issue
Ext.R4(p) and R4(q) directions to the Secretary of the Kottukal Grama
Panchayat, whereby the 1st respondent has categorically found that the
construction made by the petitioner comes squarely within the 200ms
from the High Tide Line and consequent to which the 1st respondent
directed the Panchayat to take appropriate action to comply with the
judgment by demolishing the construction in question.
5. The counsel for the petitioner submits that, despite Ext.P3
judgment he is entitled to appropriate releifs in this matter in view of
the judgment of the Supreme Court in Goa vs Diksha Holdings Pvt.Ltd
and others reported in 2001(2).S.C.C.1997 wherein in paragraph 10
Supreme Court has held that in cases, wherein, no ecological
W.P.(C) NO.6506 Of 2006 4
imbalance is caused on account of construction, such construction can
be permitted.
6. I have considered the rival contentions in detail, I note that in
Ext.P3 judgment the very same question was directly in issue. In that
judgment in paragraph 5 the learned judge in this court has held as
follows:
” I have heard the learned counsel on both sides. In
view of the Coastal Regulation Zone notification, the
constructions undertaken within 200 meters of the High
Tide line have to be removed. The grant of license by the
panchayath was made on the strength of the undertaking
given by the 2nd respondent that the area does not come
under the CRZ notification, and that in case it is found to
be coming under the said notification, it will remove all the
constructions without demur. In view of the said position,
the 1st respondent is directed to inspect the property of
the 2nd respondent and demarcate the area coming within
200 meters of the High Tide Line with notice to the
petitioner, the Panchayat and the 2nd respondent. This
the 1st respondent shall do within one month from the date
of receipt of a copy of this judgment. If the 2nd
respondent does not demolish the buldings within the
prohibited distance within one month from the date of
receipt of a copy of this judgment. If the 2nd respondent
does not demolish the buildings within the prohibited
distance within one month, the 3rd respondent shall cause
to demolish the same within one month thereafter, at the
cost of 2nd respondent . If the 2nd respondent has not ,so
far, made any application for consent, for construction in
the area beyond 200 meters of the High Tide Line, it may
make it within one month from today through proper
channel. If the application is already received and pending
or any application is received within one month, the 1st
respondent shall process the same and forward it to the
W.P.(C) NO.6506 Of 2006 5
Central Government for appropriate decision. If the
application is already received or it is filed within one
month from today, the construction standing in the area
beyond 200 meters of the High Tide Line, will not be
disturbed, until the Union of India takes a decision as
directed above. The retention of those structures,
thereafter, will depend upon the orders of the Union of
India.
7. Thus judgment has become final. Pursuant to this
judgment the 1st respondent has taken appropriate action which
culminated in Ext.R4(p) and Ext.R4(q). It would be
advantageous to extract the same fully here.
Ext.R4(p) reads as follows:
“With reference to the judgment in O.P.No.19547 of
2004 of Hon’ble High Court, the demarcation from High
Tide Line of the sea has been done in the field by the
Kerala Coastal Zone Management Authority in the
afternoon of 17.01.2006. The demarcation was carried
out in the presence of
1)Smt.Beena Sarasan(Petitioner)
2)Shri.Nobert Lawrence, Azhimala Beach Resorts
(Second respondent)
3)Smt.Joylet.J.S.Secretary-in-charge, Kottukal
Gramapanchayat and
4)Sri.Viswambharan,LDC,Kottukal
Gramapanchayath
As per judgment, the High Court has directed the
second respondent to demolish the building in the
prohibited area within one month, failing which the
Kottukal Grama panchayat (third respondent shall cause to
demolish the construction in the prohibited area within one
month thereafter. The Gramapacnhayat may take
W.P.(C) NO.6506 Of 2006 6
appropriate action for complying the judgment and the
report may be submitted to the undersigned immediately.”
Ext.R4(q) reads as follows:
“With reference to the above letter, it is to
inform you that the demarcation of the 200m High
Tide Line was marked in the field in the presence of
Smt.Joylet, Junior Superintendent – Secretary in
charge of Kottukal Gramapanchayat and
Sri.Vishwambaran, LDC, Kottukal Gramapanchayat
along with the petitioner and second respondent.
The letter cited 2nd in the above reference
was communicated to the Secretary, Kottukal
Gramapanchayat, and it clearly stated the 200 m
line from the high Tide Line. It is seem to be found
that the buildings under question fell within the
200m CRZ and hence, are in violation of the Rule
provisions. Hence you may comply with the
Hon’ble High Court order as per existing Rules.”
8. The 1st respondent is the appropriate authority to decide the
question as to whether the construction are in compliance with the
Zoning Regulations. They have categorically found that the
construction made by the petitioner comes squarely within 200 meters
area from the High Tide Line, where development activities are totally
prohibited. In so far as Ext.P3 judgment is binding on the petitioner
and Ext.R4(p) and Ext.R4(q) are in compliance with Ext.P3 judgment,
the petitioner cannot now take a stand against Ext.R4(p) and Ext.R4
(q), which categorically holds that the petitioner’s constructions are
W.P.(C) NO.6506 Of 2006 7
within the prohibited area of within 200 meters from the High Tide
Line. Therefore in accordance with the directions in Ext.P3 judgment,
the construction are liable to be demolished.
9. Regarding the contentions of the petitioner with reference to
the above said judgment of the Supreme Court, I am not satisfied that
the facts and circumstances of the case applies to facts of this case.
There is no finding by any competent authority that the petitioner’s
construction will not cause any ecological imbalance and there is no
material produced by the petitioner to prove otherwise. In any way, as
far as Kerala Coastal Zone Management Authority is an expert body to
decide all these questions as provided in the regulations applicable,
this court, which is not in anyway equipped to decide those questions
especially since no material are also placed before this court,cannot
countenance the contentions of the petitioner in that regard.
10. Counsel for the petitioners submits that Ext.R4(p) and R4(q)
have been issued subsequent to the filing of writ petition and the
petitioner had in fact highlighted his grievances in Ext.P6 and Exhibit
R4(p) and Ext.R4(q) have been passed without referring to Ext.P6
representation. I am not able to countenance this contention also
W.P.(C) NO.6506 Of 2006 8
because the inspection which resulted in Ext.R4(p) and Ext.R4(q) have
been conducted pursuant to the orders of this court which contains
specific directions in this regard which the 1st respondent cannot
violate. In so far as, the inspection have been conducted in the
presence of the petitioner also, the petitioner cannot now contend that
such representation was not taken into consideration. As far as the 1st
respondent is concerned,he is bound by Ext.P3 judgment and has to
follow the same in letter and spirit.
There is no merit in the writ petition and accordingly the same is
dismissed.
S.SIRI JAGAN, JUDGE
SJ
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