Beena Sarasan v. Kerala Coastal Zone Management Authority & others (2005.11.08)

IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Honourable Mr.Justice K.Balakrishnan Nair

Tuesday, the 8th November, 2005/17th Karthika, 1927

W.P.(C).No….1 9 5 4 7……OF 2004-B

BEENA SARASAN Vs. KERALA COASTAL ZONE MANAGEMENT AUTHORITY & ANR

K.BALAKRISHNAN NAIR, J.

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W.P.(C).No..1 9 5 4 7..OF 2004-B
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JUDGMENT

The petitioner is the owner of two acres of garden land in Kottukkal Village in Thiruvananthapuram District. The 2nd respondent Beach Resorts owns about 70 cents of land, adjacent to the petitioner`s lot. A substantial portion of the 2nd respondent`s plot is covered by Coastal Regulation Zone-III. Ext.P.1 is the sketch of the area, showing the lie of the land of the petitioner and that of the 2nd respondent and also the High Tide Line and Low Tide Line. In the light of the Coastal Regulation Zone Notification, no construction is permissible within 200 metres of the High Tide Line. Between 200 and 500 metres, the construction can be effected, only with the consent of the Ministry of Environment and Forests, Union of India. When the 2nd respondent started construction in its plot within the prohibited distance of 200 metres, the petitioner filed Exts.P.1 and P.3 representations before the 1st respondent. When the said respondent did not take any action on those representations, the petitioner filed this Writ Petition, seeking appropriate reliefs. Ext.P.4 series photographs would show the constructions undertaken by the 2nd respondent. According to the petitioner, all the buildings constructed by the 2nd respondent are liable to be demolished, as they are eighter within the prohibited distance of 200 metres or made without the consent of the Ministry of Environment and Forests, Union of India.

2. The 2nd respondent has filed a counter affidavit, in which it is submitted that it has made the construction, after obtaining the necessary building permit from the Panchayat. Ext.R2(a) is the site plan, which has got the approval of the Panchayat and also the 1st respondent. It is also alleged that only to harass the said respondent, this writ petition is filed. The 2nd respondent has also produced Ext.R2(c) series building permits issued by the Panchayat. All the eight buildings were constructed on the strength of those building permits. The 2nd respondent has done everything in accordance with law and in good faith it is contended.

3. The 1st respondent has filed two statements. In the first statement, it is stated that construction is going on, in the area covered by the Coastal Regulations Zone Notification. So, the said respondent by letter dated 23-7-2004, directed the Panchayat, to stop all further construction activities. Upon receipt of the communication from the 1st respondent, the Panchayat issued a stop memo to the 2nd respondent, directing to stop further construction. It is also stated that the 1st respondent has not granted permission to the 2nd respondent, for undertaking any construction in the disputed area. In the additional statement filed by the 1st respondent on 28-9-2004, it is further averred that the construction is undertaken in the area covered by the Coastal Regulation Zone Notification and the said area falls under CRZ-III category. The area upto 200 metres of the High Tide Line of the sea is No Development Zone. Major part of the above said construction was made in the `No Develpinent Zone`, which is a prohibited activity as per the existing CRZ norms. The construction in the area between 200 metres and 500 metres of the High Tide Line is permissible, only with the prior approval of the Government of India, subject to conditions that may be imposed by the said Government. For obtaining the permission of the Government of India, the 2nd respondent should submit an application to the 1st respondent, through the Panchayat. The 1st respondent, upon receipt of such application, will process the same and forward it to the Ministry of Environment and Forests, Union of India, for approval. In the present case, no such application has been received, so far, by the first respondent, it is asserted.

4. The 3rd respondent Panchayat has also filed a counter affidavit, in which it is submitted that building permits were granted, relying on the assertion made by the 2nd respondent, that the area in question does not come under the CRZ Notification. It is also stated that the 2nd respondent has given an undertaking in a stamp-paper which is produced as Ext.R3(a), stating that the construction does not come within the prohibition of the CRZ Notification and if it is found that the construction is made within the prohibited area, the same shall be removed without demur. The translation of Ext.R3(a) reads as follows:

"The consent letter submitted by Norbert Lawrence, S/o.Lawrence Fernandez, T.C.35/299, Evershine, Muttathara Village, Thiruvananthapuram District on 06-05-2002, before the Secretary, Kottukal Grama Panchayat.

75 cents of land in S.No.480/2 in Kottukal Village of Kottukal Grama Panchayat, Neyyattinkara Taluk in Thiruvananthapuram District is in my possession and ownership. The huts proposed to be constructed in the said property are with mud walls and thatched roofs. The said property does not come under the Coastal Regulations. If, upon inspection, it is found that the said property is within the CRZ-I will demolish and remove the buildings at my cost and without claiming any remuneration and the status guo ante of the land will be restored and I will not raise any dispute or file any case against the Panchayat."

The Panchayat has further submitted that it has issued Ext.R3(b) stop memo to the 2nd respondent and by Ext.R3(c), the Police was also informed for help to enforce Ext..R3(b).

5. I heard the learned counsel on both sides. In view of the Coastal Regulation Zone Notification, the constructions undertaken within 200 metres of the High Tide Line have to be removed. The grant of licence by the Panchayat 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 metres 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 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 the 2nd respondent. If the 2nd respondent has not, so far, made any application for consent, the construction in the area beyond 200 metres of the High Tide Line, it may make it within one month from today through property channel. If the application is already received and pending or any application is received within the month, the 1st respondent shall process the same and forward it to the 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 metres 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.

The Writ Petition is disposed of as above.

08-11-2005. Sd/- K.BALAKRISHNAN NAIR, JUDGE