High Court Kerala High Court

Norbert Lawrence vs Kerala Coastal Zone Management … on 28 July, 2006

Kerala High Court
Norbert Lawrence vs Kerala Coastal Zone Management … on 28 July, 2006
       

  

  

 
 
  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


                            ----------------------------

                          W.P.(C) NO.6506  Of 2006

                            ----------------------------


                      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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