- CRZ Notified Area
- Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326
- Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326
- 14. Tribunal to settle disputes
- 29. Bar of jurisdiction
- Salaya Machhimar Boat Association through Vice President V Union of India reported in 2015 0 Supreme (Guj) 41
- Vaamika Island (Green Lagoon Resort) v. Union of India, 2013 (3) KLT 677 (SC)
- Ratheesh v. State of Kerala, 2013 (3) KLT 840
- Goa Foundation v. Diksha Holdings (P) Ltd., (2001) 2 SCC 97
- Piedade Filomena Gonsalves v. State of Goa, (2004) 3 SCC 445
- UT of Lakshadweep v. Seashells Beach Resort, (2012) 6 SCC 136
- Baradakanta Misra v. Bhimsen Dixit, AIR 1972 SC 2466
Coastal Regulation Zone Notification ( CRZ ) – Beach Resorts – illegal constructions in violation of the permits as well as CRZ notification – One of the requirements for development of Beach Resorts in CRZ area is the extent of area of the plot shall be 0.4 hectares.
# CRZ Notified Area
W.P.(C) Nos.5482 of 2007, 11186 & 25739 of 2012
Dated this the 8th day of November, 2016
1. NOBERT LAWRENCE, MANAGING DIRECTOR, AZHIMALA BEACH RESORT PVT.LTD.,, NEAR AZHIMALA TEMPLE, PULINKUDY, VIZHINJAM, CHOWARA P.O., THIRUVANANTHAPURAM.
2. M/S. SAMIRA BEACH CASTLE RESORT (PVT.) LTD., RUBY, K.P.1/1150, ROYAL GARDENS, MUKKOLA P.O., THIRUVANANTHAPURAM,
BY ADV. SRI. G.S.REGHUNATH BY ADV. SRI.P.R.VENKETESH
1. KOTTUKAL GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KOTTUKAL GRAMA PANCHAYATH, THIRUVANANTHAPURAM-695 501.
2. KERALA COASTAL ZONE MANAGEMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, SASTRABHAVAN, THIRUVANANTHAPURAM-695 004.
3. CENTRE FOR EARTH SCIENCE STUDIES, AKKULAM, THIRUVANANTHAPURAM-695 031.
4. BEENA SARASAN, THIRUVANANTHAPURAM.
R1 BY ADVS. SRI.B.S.SWATHY KUMAR SMT.P.V.SOBHANA SMT.V.BEENA SMT.K.V.SUPRABHA R4 BY SMT. BEENA SARASAN (PARTY IN PERSON) BY ADV. SMT. ANITHA RAVINDRAN
These three writ petitions relate to a Beach Resort constructed in 75 cents of land in Kottukkal Village in Thiruvananthapuram District, presently owned by the additional petitioner. Hence all these writ petitions were heard together.
2. W.P.(C) No. 5482 of 2007 was filed by one Sri. Nobert Lawrence, who was the Managing Director of Azhimala Resorts. The Azhimala Resorts was purchased by Mausumy resorts as per sale deed number 2572/2008, which was in turn purchased by Samira Beach Castle resorts as per sale deed number 2357 of 2014, which got itself impleaded as additional petitioner herein. The Writ Petition was filed alleging that the high tide line (‘HTL’ for short) from the sea shore on the side of his property was not demarcated as directed in Ext.P3 judgment in W.A.1611 of 2006, while challenging the proceedings initiated by the Kottukal Grama Panchayat to demolish the constructions made by it. W.P.(C).11186 of 2012 is filed by One Smt. Prasannakumari, the Managing Director of Mausumi Resorts, who purchased Azhimala Resorts in 2008 from whom the additional petitioner Samira Beach Castle Resorts purchased it in 2014. She is challenging the order passed by the Ombudsman for Local Self Government Institutions, directing to cancel the mutation effected in respect of the buildings, purchased by her and the consequential order issued by the Panchayat.
3. W.P.(C) No.25739 of 2012 is filed by Sri. Sivakumar, challenging the order passed by the Tribunal for Local Self Government Institutions, by which the order of the Panchayath to demolish unauthorised constructions in violation of the judgment in W.P.(C) No.19547 of 2004, was upheld, rejecting his appeal. Orders impugned in both the writ petitions – 11186/12 and 25739/12, are issued subject to the decision in W.P(C).No.5482 of 2007. The facts leading to W.P(C).No.5482 of 2007 are the following:
4. An extent of 75 cents of property with seashore on its southern side, in Re-survey no.359 (part) of Kottukal Village in Neyyattinkara, in Thiruvananthapuram District was originally purchased by the petitioner- Sri. Nobert Lawrence, a Non-Resident Indian, in the year 1990. He wanted to set up a tourist resort in that property and transferred the property to Azhimala Beach Resorts, a company in which he himself was the Managing Director. On account of ecological and scientific reasons, he wanted to put up certain semi permanent structures and got Ext.P1 series of permits in the year 2002 and 2004, from the Kottukal Grama Panchayat-the 1st respondent. When he put up the constructions, Smt.Beena Sarasan, the 4th respondent, who is the owner of 2 acres of property on the eastern side of the resorts, approached the Kerala Coastal Zone Management Authority (‘KCZMA’ for short) alleging that the constructions were being carried out in no development zone and without permission of the Ministry of Environment & Forest, Government of India, in violation of provisions in Coastal Regulation Zone Notification (‘CRZ’ for short). She thereafter approached this court filing W.P. (C).No.19547 of 2004, against KCMA as the 1st respondent, Azhimala Beach Resorts as the 2nd respondent and the Kottukal Panchayat as the additional 3rd respondent. After hearing both sides, this Court found that the Secretary of the Panchayat had given the permits after obtaining an undertaking from the petitioner that his property did not come under Coastal Regulation Zone notified area and the proposed construction of temporary huts with mud walls and thatched roofs shall be removed at any time at his cost in case it was found to be in the CRZ notified area, as and when directed by the Panchayat, without resorting to any litigation. By Ext.R4(a) judgment dated 8.11.2005, the writ petition was disposed of as follows:
“5. XXX The grant of license 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 to 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 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, 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 is pending or any application is received within one 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 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.”
5. An inspection was accordingly conducted on 17.1.2006 with notice to all parties. The 2nd respondent found that the constructions were in the prohibited zone and therefore instructed the 1st respondent Panchayat to take steps to demolish the constructions.
6. At this stage the petitioner filed W.P.(C) 6506 of 2006 alleging that the 2nd respondent did not consider his request in Ext.P2 representation submitted by him on 20.2.2006, to determine the HTL with reference to the situation which prevailed in 2002-03, when the construction was carried out. According to him when he made the construction, the southern boundary was beyond 200 meters of HTL; considerable variation occurred on account of tsunami and shoreline had changed subsequently, which is beyond his control; in case the height of the cliffs having about 160 feet is taken into account, for the demarcation of HTL and the HTL as on the date of construction were reckoned, the constructions would be found within the permissible distance, etc. The writ petition was dismissed by judgment dated 28.7.2006 (produced as Ext.R3(c) along with the counter affidavit in W.P.(C) 11186 of 2012) in the light of Ext.R4(a) judgment. The petitioner thereupon filed W.A. 1611 of 2006. The Division Bench found that the contentions raised in the representation and in the W.P.(C) No.6506 of 2006 were not considered in Ext.R4(a) judgment. The Writ Appeal was disposed of as per Ext.P3 judgment dated 11.09.2006 with the following directions.
“Considering the entire facts and circumstances of the case, we direct the Kerala Coastal Zone Management Authority to once again measure the property of the petitioner and demarcate the area coming within 200 meters of the HTL. The area shall be demarcated from the HTL which was in existence at the time when the petitioner constructed the huts in the property. The said respondent would also consider the consequence of change in distance of HTL if it may be found that at the time when the petitioner made the construction, the construction made by him was beyond 200 meters from the HTL, which because of the vagaries of nature have been reduced now. The measurement as directed above shall be done as expeditiously as possible, and preferably within 6 weeks from today with due notice to all concerned.”
7. The 3rd respondent-Centre for Earth Science Studies (‘CESS’ for short) after undertaking demarcation, as directed in Ext.P3 judgment, furnished Ext.P4 report to the petitioner on 23.12.2006. As per that report there was no change in the HTL for the last 10 years and no change was brought about in this area due to tsunami and even the shores affected by tsunami were restored by that time. Based on this report the 2nd respondent instructed the 1st respondent Panchayat, as per Ext.P5 letter dated 2.1.2007, to take action in terms of Ext.R4(a) judgment, as there was no difference in the HTL. Accordingly, the Panchayat issued Ext.P6 notice dated 15.01.2007 directing the petitioner to remove all unauthorised constructions within the 200 metres from the seashore, failing which it will effect demolition and cost would be realised from him. This writ petition is filed at this stage challenging Exts.P5 and P6 proceedings and for a direction to demarcate the HTL as directed in Ext.P3 judgment.
8. In this writ petition, the petitioner submits that even though the direction to demarcate was issued to the 2nd respondent, the 2nd respondent did not take any action; but it was the 3rd respondent-Centre for Earth Science Studies (‘CESS’ for short), which undertook the demarcation, that too not properly or as directed in Ext.P3 judgment; no identification of HTL or measurement of 200 meter was made with notice to petitioner; no attempt was made to identify HTL as existed in 2002-03 at the time of construction, as directed; petitioner came to know about such demarcation when Ext P4 report of 3rd respondent was received, etc. This writ petition is filed at this stage with the following prayers:
“a) issue a writ in the nature of certiorari quashing Ext P5 and P6
b) issue a writ in the nature of mandamus commanding the 2nd respondent to demarcate the high tide line in the area of the sea shore situate on the southern side of petitioner’s property in survey no.359 part in compliance with directions issued in Ext P3 judgment.”
Petitioner’s contentions are that semi permanent structures were constructed in accordance with Ext.P1 series of permits; the distance is not measured as directed in Ext P3 judgment; Ext P4 report is not prepared as directed in Ext.P3 judgment and there is no measurement of HTL with notice to him; HTL as available in 2002-2003 can be ascertained only by experts in the field; the proceedings for demolition are initiated at the instance of the 4th respondent, who owns 2 acres of property on the eastern side of the resorts, who wanted to purchase the property of the petitioner also; since she did not succeed to get it, she has been after various authorities since then; she does not have any objection against any of the other resorts in the beach, all of which are facing the same conditions regarding the proximity to the high tide line as well as the coastal zone. It is the case of the petitioner that he is an NRI who put in his entire savings towards the constructions; but on account of the personal vendetta of the 4th respondent, who is set to see that the resort is closed down, he had to sell the resort.
9. The first respondent Grama Panchayat filed a counter affidavit stating that the 2nd respondent KCZMA informed it on 2.1.2007 that there was no change in 200 meters line demarcated from the HTL earlier and instructed to take action in compliance of the court directions. Ext.P6 notice was issued in those circumstances.
10. The 2nd respondent did not file any counter affidavit. Pursuant to an interim order passed in this writ petition on 5.3.2007, directing to demarcate the HTL as directed in Ext.P3 judgment, a sketch was produced, through the Government Pleader.
11. The 4th respondent, Smt. Beena Sarasan, who appeared and argued in person, filed a detailed counter affidavit. The 4th respondent had approached this Court in W.P.(C) No.19547 of 2004 against the illegal constructions carried out by the petitioner in violation of the permits as well as CRZ notification; this Court by Ext.R4(a) judgment directed to demolish all structures in the no development zone i.e within 200m of HTL; with respect to the constructions carried out between 200m and 500 m from the HTL, the petitioner was directed to file an application for approval from the Government of India, through proper channel, within a month, if no application was submitted till that time; but he did not submit any such application; the 2nd respondent was directed to demarcate the HTL with notice to all the parties and directed to demolish or cause to demolish all structures within 200m; the 2nd respondent demarcated the HTL on 17.1.2006, in presence of the petitioner Sri.Norbert, the Panchayat and herself and thereafter, as per Ext.R4(b) letter dated 3.3.2006, the Member Secretary of the 2nd respondent addressed the Panchayat, to take steps for demolition of the structures within 200 m, as directed in the judgment. The petitioner did not file any appeal against Ext.R4(a) judgment; as against Ext.R4(b) and the proceedings initiated by the Panchayat, he approached this Court in W.P.(C) No.6506/06 alleging that demarcation was not done as requested by him in his representation, in which he claimed that constructions were made as per the permits issued in 2002 and 2004 beyond 200m and it was due to the subsequent alteration effected on HTL that the structures happened to be found within 200m. This Court dismissed the writ petition. It was thereafter Ext.P3 judgment was rendered in the writ appeal directing demarcation of the area coming within 200m from the HTL which was in existence at the time of the constructions; even though the petitioner had in the W.P.(C).No.6506/06 sought for a direction to the 3rd respondent to submit a status report, this Court had not granted the said relief. On an application under the Right to Information Act, she obtained a copy of the statement of facts forwarded by the 2nd respondent along with Ext.R4(e) letter, which was to be filed in W.P.(C) 6506/06, based on which no counter affidavit was filed; in that statement of facts the 2nd respondent had stated that the petitioner did not submit any application pursuant to the direction in Ext.R4(a) judgment, through proper channel, seeking for approval of the constructions made beyond 200 meters and no such application was pending before them for approval. Pointing out that the statement of facts forwarded was not filed either in the writ petition or in the writ appeal, it is stated that the 2nd respondent is colluding with the petitioner. She pointed out that the report was prepared based on his own request. She produced Ext.R4(f), status report prepared by the 3rd respondent in June, 2002 in respect of the very same survey number.359 at the request of one Sri. Krishnan Nair, pointing out that no change is brought about with respect to the high tide line. Relying on it, the 4th respondent stated that the demarcation done in 2006 and thereafter were in conformity with the approved coastal zone map of 1995. She produced the counter affidavit dated 27.2.2005 as Ext.R4(j) pointing out the version of the then Secretary of the 1st respondent Panchayath in W.P.(C) No.19547/2004, who was the 3rd respondent therein. It was stated therein that the petitioner had violated the conditions of the permit and the undertaking he had submitted; the permit was granted subject to 6 express conditions. Condition no.iv was to the effect that any change in project profile including alteration or addition of rooms shall be notified to the ministry and prior approval for the same shall be obtained from the ministry. Under condition no.vi, right to revoke clearance was reserved if implementation of the terms and conditions stipulated were not seen satisfactory; so also the right to incorporate any other condition for environmental protection by any competent authority. It was further stated that the Panchayat had obtained an undertaking from the petitioner in a stamp paper worth Rs.50/- on 23.4.2002, which was produced as Ext.R3(a) in that counter affidavit. He stated that his intention was to construct temporary huts with mud walls and thatched roof in his 75 cents of property in survey number 480/2 in Kottukal village, which does not come under CRZ notified area, and undertook to remove the structures at his cost as and when directed in case it is found to be in CRZ notified area. The secretary further stated that the 2nd respondent-the petitioner herein had obtained 4 door numbers for 4 structures from the Panchayat by putting up temporary sheds as per the permit; but on subsequent verification it was seen that he had effected structural changes by converting those as permanent buildings. The Panchayat had in that counter affidavit, referred to various stop memoes issued to the petitioner on 7.8.2004, their letter seeking police protection to enforce their orders, with effect from 25.9.2004 and stated that the petitioner had violated the conditions of permit and his undertaking submitted before it. Pointing out the counter affidavit filed in this writ petition and the counter affidavit filed earlier, the 4th respondent pointed out the collusion between the petitioner and respondents 1 and 2. Referring to Ext.R4(f) status report prepared by the 3rd respondent in June 2002, it is stated that the 200 m distance from the high tide line then was 40 m south from reference point 1 in resurvey number 359/8 of Kottukal village and the petitioner’s property falls within the 2 reference points. She stated that the status report of 2002, the demarcation done on 17.01.2006, pursuant to Ext.R4(a) judgment and the status report Ext.P4 of the 3rd respondent were all tallying with the authenticated Coastal Zone Map of 1995 and demarcation was done correctly. Producing Ext.R4(m) sale deed in favour of Mausumi resorts, she explained the constructions carried out in violation of Ext.R4(a) judgment and that the petitioner’s intention is to thwart the implementation of the directions, since she had filed C.C.No. 595 of 2006 was filed. The relevant portion of the sale deed read as follows:
“Whereas the vendor has constructed 75 cents of property along with the 24 rooms constructed therein which included rooms for stay, office, reception, yoga hall, doctors’ room, kitchen, restaurant, etc, out of which there are 7 AC rooms, 8 non-AC rooms and 2 mini cottages meant for accommodation, constructed by the vendor and the total construction is having an area of 841.35 square meter (9056 square feet). These buildings are in 4 blocks having numbers PK VI/1380, 1381, 1382 and 1383.xxxx The said property is measuring about 28,05 ares (i.e 9.80 ares in Re. Sy No.359/8, 8.35 ares in Re.Sy No 359/10, 5.10 ares in Re. Sy No. 359/16, 4.8 Ares in Re.Sy No. 359/11) in block No.16 —-of Kottukal Village, purchased by the vendor as per sale deed number 2430 of 2003. The consideration shown was one crore seventy lakhs.
The 4th respondent stated that all those structures mentioned in the descriptions of the deed were constructed in violation of the interim orders Exts.R4(h) and (i) passed by this Court in W.P.(C). No.19547/2004, which were in force from 20.7.2004, pointing out that there were only 4 temporary sheds at the time when the interim order was passed. When the additional petitioner purchased the said property from Mausumi Resorts, as per sale deed dated 30.10.2014, the 4th respondent filed I.A No.12177 of 2015 to restrain the petitioner and his men including Samira Beach Castles Private Ltd., from effecting any further constructions or improvements to the existing structures. In answer to the allegation that she is filing cases against the petitioner since she could not purchase the property of the petitioner on a throw away price, she states that a person with prudent mind will never invest in such properties in no development zone and she wanted to protect her property. It is stated that the petitioner did not challenge Ext.R4(a) judgment. But when the result of the inspection conducted pursuant to that judgment was against him, he came out with the contention regarding, tsunami, vagaries of nature, etc. and wanted to measure the HTL again. When there was no change found in the report Ext.P4, he has filed this writ petition alleging noncompliance, which is nothing but an abuse of process of court.
12. Though the allegations are against the 2nd respondent, no counter affidavit is filed. The learned Standing Counsel, who appeared in one of the writ petitions of 2012, submitted that he does not have any instructions to appear in this Writ Petition. An interim order was passed in this writ petition on 5.3.2007, directing the 2nd respondent to demarcate the high tide line in the area of sea shore on the southern side of the petitioner’s property in Survey No.359 part in compliance with the directions issued in Ext.P3 judgment, with notice to both the parties. Thereafter an action taken report signed by one Joseph Panicker, Section Officer, Science & Technology Department, along with a sketch, was filed before this Court with a memo dated 20.7.2007 of the Government Pleader. In the report it was stated that the CZMA decided to conduct the demarcation on 22.3.2007; but the revenue officials could not identify the actual boundaries of Sy. No.359 of Kottukal Village and they wanted the help of Tahsildar. After relevant preparations to identify the boundaries, the no development zone from high tide line was marked on 15.5.2007. It reaches at 48 m south from the north boundary of the plot in Sy.No. 359 part. The Village Officer Kottukal Village identified the marking and recorded; marking was assisted by Expert Scientists from CESS, which is an authorised agency for demarcation of CRZ approved by the Government of India. It was further stated that the majority land and all buildings except an office building in Sy.No.359 lies under no development zone of coastal regulation zone which attracts demolition, as the location comes under CRZ III.
13. The petitioner filed objections to the action taken report on 16.8.2007, stating that none of the directions in the judgment Ext.P3 was complied with; in Ext.P3 judgment direction was to measure the petitioner’s property and demarcate the area coming within 200 meters of HTL which was in existence at the time when the petitioner made the construction of temporary huts; the further direction to the 2nd respondent, was to consider the consequence of change in distance of the HTL if they may be found that at the time when the petitioner made the construction, it was at 200 meters from HTL, which because of vagaries of nature has reduced; the report does not reveal any endeavour was made to fix the HTL either in terms of the direction of this court in Ext.P3 or in terms of the interim order; the property in question is not horizontal; it lies in an elevated position; the southern point of the property is 15 feet high from the sand dunes with hard rocks in between. The northern point is 180 feet high from sand dunes. The measurement is not to be taken horizontally. The petitioner objected the identification of the property saying that the action taken report does not explain it. It is further stated that there are several buildings more closer to the shore; therefore the petitioner’s building is also not in objectionable limits.
14. It is pertinent to note that the first respondent does not say anything in their counter affidavit regarding the permits or the alterations they found and stated in the counter affidavit filed in W.P.(C)No.19547/2004. At the same time what he has stated in this writ petition is that the petitioner was found to have constructed the structures in accordance with the permits. According to him the impugned action was taken only because of the contempt petition filed by the 4th respondent.
W.P.(C) No.11186 of 2012
15. W.P.(C) No.11186 of 2012 was filed by one Smt. Prasannakumari, Managing Director of Mausumi Resorts challenging Ext.P6 order passed by the Ombudsman for Local Self Government Institutions on 24.1.2012 and the consequential order Ext.P7 passed by the Panchayath on 15.3.2012. In this case also the present owner -M/s Samira Beach Castle Resort has got impleaded.
16. Immediately after the purchase from Azhimala Resorts the petitioner Smt. Prasannakumari had filed O.P.No.1055 of 2008 before the the Ombudsman seeking directions to the Panchayat to effect mutation of the buildings in her name. The Ombudsman had taken note of the objection of Smt. Beena Sarasan-the 3rd respondent, that the Azhimala resorts, which was the predecessor in interest of Mausumi Resorts had made unauthorised additions. By Ext.P3 order dated 04.10.2008 the Ombudsman directed the Panchayath to effect mutation, making it clear that the structures would be with specific area as mentioned in the Panchayat assessment register. Pursuant to this, the Panchayat passed Ext.P4 order dated 20.11.2008, changing the ownership of buildings having numbers P.K.VI-1380, 1381, 1382 and 1383 each building with plinth area of 48 Sq.mts (192 Sq.Meter) as prescribed in the Building Tax Assessment Register.
17. Smt. Beena Sarasan sought for cancellation of allotment of those building numbers, filing O.P.108/2011, before the Ombudsman, alleging that the allotment was contrary to Ext.P3 order passed by Ombudsman, since the structures which were physically available were those described in the sale deed in favour of Smt. Prasannakumari, according to which, the plinth area of the buildings was 992 sq.metres with 24 rooms including rooms for stay, office, reception, yoga hall, doctor’s accommodation, kitchen etc. and no building with the description covered by the permit as per the order of Ombudsman was physically available there. In Ext.P6 order, the Ombudsman, found that as per the assessment register, building Nos.1380 to 1383 were described as thatched sheds with one room, varandha and bathroom. But when orders were issued by the Panchayat on 20.11.2008, those buildings were already replaced by other concrete buildings. Though the Managing Director had applied for regularisation, the buildings continued to be in the classification of unauthorised buildings. Observing that no authority would be able to regularise the illegal constructions made in violation of the CRZ Notification, the Ombudsman found that the Panchayat had committed a very serious irregularity in numbering the buildings totally different from those in assessment register and cancelled the mutation. It was held that all those would finally depend upon the judgment of this Court. However the order effecting mutation was cancelled. Ext P7 is the consequential order passed by the Panchayat.
18. In the writ petition, the case of the petitioner is that the Ombudsman’s order was unilateral; without looking into the report of the Deputy Director of Panchayat; there are several other resorts similarly placed; party respondent wants to wreak vengeance over the predecessor in interest Sri.Nobert Lawrence and she does not raise any objection against other resorts, etc.
19. According to the party respondent, since Smt. Prasannakumari-the petitioner had approached the Ombudsman and the order passed in that case was seen violated, she approached the Ombudsman. After explaining the circumstances under which the orders were passed, she stated that the Secretary of the Panchayat had filed a written statement before the Ombudsman on 21.12.2011 [Ext.R3(h)]. In that written statement he stated that the description of the buildings as per the assessment register was building with one room with a bath room and veranda in cement with thatched roof in 48 sq.mt; but none the buildings physically available were of that description; even though there were 2 buildings with thatched roof, those were not of the description in the assessment register; other buildings were not of thatched roof. He had also stated that structural alterations were seen effected and notice issued by the Panchayat against the same was upheld by the Tribunal for Local Self Government Institutions. The party respondent stated that even though, the permits were issued for thatched sheds the Azhimala Resorts had already constructed huge concrete buildings; even though Panchayat’s notice against the unauthorised construction was upheld by the LSGTI, the petitioner did not choose to challenge it and despite complaints submitted before the Panchayat as well as the Police officials, no further action was taken.
20. However the contention of the learned counsel appearing for the additional petitioner is that the Ombudsman did not have any jurisdiction over this matter; it cannot be said that a complaint as defined in Section 271F of the Kerala Panchayat Raj Act was before the Ombudsman and Ombudsman is not competent to adjudicate an issue which does not come under the said provision; allegations in Ext.P5 would not come under clause (b) of subsection (1) of Section 271, as there are no allegations with respect to the involvement of corruption; as long as the averments of the party respondent do not constitute allegation as provided under the Act, there is no basis for any action under Section 271 J, M or P, the entire proceedings leading to Ext.P6 are without authority and liable to be set aside.
21. In reply the 3rd respondent’s contention is that the first order in the O.P filed by Smt. Prasannakumari will also be equally vitiated and she approached the Ombudsman only because of the order in the first O.P. In case it is found that the Ombudsman is not having jurisdiction, there would not have been an occasion for her to approach the Ombudsman or any mutation in favour of Smt. Prasannakumari.
W.P.(C).No.25739 of 2012
22. This Writ Petition is filed by Sri.Sivakumar-the petitioner, who is the Managing Director of the Mausumi Resorts, challenging Ext.P4 order passed by the Tribunal for Local Self Government Institutions (for short, ‘the Tribunal’) on 06.1.2011, upholding Ext.P3 order dated 30.11.2010 of the Panchayat to stop the unauthorised constructions carried out by the petitioner in his resort, seeing that the same was in violation of the directions contained in the judgment of this Court in W.P.(C).No.19547 of 2004. According to the petitioner, the Tribunal passed the order relying on the contention of the party respondent Smt. Beena Sarasan, when maintenance works were going on, which did not require any permit under Rule 10 of the Building Rules. Petitioner’s case is that there is no illegal construction and the writ petition alleging non-compliance of directions in W.A.1611/2006 is pending consideration in W.P.(C) No.5482 of 2007. Building Nos.PK-VI/1380, 1381, 1382 and 1383 were stated to be constructed in accordance with the building rules and as per the licence granted till 31/3/2011.
23. Smt.Beena Sarasan who got impleaded as additional respondent before the Tribunal, disputed the claim stating that the permit was only for 4 temporary structures each having a plinth area of 48 Sq. mtrs. But the petitioner had put up 24 rooms having a total plinth area of 992 Sq.ms violating the CRZ Notification and construction was carried out in no development zone. The petitioner purchased the unauthorised constructions including the permanent buildings, constructed in total violation of the Building Rules as well as CRZ Notification.
24. After perusing the files, the Tribunal found that, as per the sale deed No.2572/2008 by which the petitioner purchased the resort from Nobert Lawrence of Azhimala Beach Resort, there are 24 rooms for stay, office, reception including 7 AC rooms, 2 mini hotels etc., whereas the permit was in respect of 4 buildings bearing Nos.1380 to 1383 having a total plinth area of 192 Sq.ms. alone. It is after purchasing these unauthorized constructions that the petitioner had preferred application for mutation and when action was not taken complaint was filed before the Ombudsman and the Ombudsman by order dated 04.10.2008 directed to effect mutation in respect of structures with specific areas as mentioned in the Panchayat Assessment Register. The Tribunal found that there was no application for renovation and Rule 10 of the Kerala Municipal Building Rules was also violated, apart from the fact that constructions were carried out in violation of the orders of stay passed on 30.10.2004 in W.P.(C).No.19547 of 2004 as well as the judgment in that writ petition and it noted that the Secretary of the Panchayat had sworn to an affidavit in that writ petition regarding the permit for 4 door numbers for 4 structures, but the petitioner had effected structural changes by converting the structures as permanent buildings. After perusing the files containing the inspection report by the CRZ authority furnished in the year 2002 as well as 2006, the Tribunal found that the petitioner’s property is located in CRZ-III area where construction can be made only in accordance with the provisions in CRZ regulations of the coastal zone management authority. The action taken pursuant to the order passed in W.P.(C).No.5482 of 2007, also found place in the file. Under these circumstances, the Tribunal held that the action of the petitioner in proceeding with the construction work was illegal. Therefore, the stop memo issued by the Panchayat was upheld.
25. The grounds urged in the writ petition are that there are several resorts as that of the petitioner under the very same Panchayath which are just 25 metres away from the seashore and the 5th respondent has got complaints against the petitioner alone evidently for her personal gains, since she had an eye on the said property. According to the petitioner, no prejudice is caused to the 5th respondent and no ecological harm is caused by functioning of the petitioner’s resorts.
26. In the counter affidavit by the party respondent it is stated that there is no reason stated for the delay in challenging the order of the Tribunal passed on 6. 1.2011, while denying the allegations against her and explaining the circumstances which led to the impugned order.
27. I heard Sri. G.S. Raghunath, the learned Counsel for the additional petitioner, Sri.Swathikumar, the learned Counsel for the 1st Respondent, Smt.Beena Sarasan, the 4th respondent, and the learned Government Pleader. I had the benefit of hearing Sri. N.Sukumaran, the learned Senior Counsel also. Sri.Prakash Vadakkan who appeared for KCZMA in W.P.(C) No.11186/2012 alone, was also heard.
28. The thrust of the contentions on behalf of the petitioner is that directions in Ext.P3 are not complied with and the 3rd respondent has no authority to undertake any demarcation, when direction in the judgment is to the 2nd respondent. During the course of arguments, the additional petitioner filed I.A.12794 of 2016 seeking transfer of the writ petition to the National Green Tribunal, pointing out that the issue arising for consideration comes under the Environmental Protection Act and CRZ notifications.
29. I have considered the pleadings of the parties and the contentions raised. Before going into that question on the plea for transfer, it is necessary to examine the relief sought for in this writ petition. The contention of the petitioner is that the 2nd respondent has not complied with the directions in Ext.P3 judgment and there was no direction in Ext.P3 to the 3rd respondent to demarcate the HTL. First of all, it is to be considered whether the directions in Ext.P3 are complied with. Ext.P4 is a report furnished by the 3rd respondent pursuant to the judgment. Though the said report is not challenged, the learned Counsel for the petitioner vehemently contended that the directions are not complied with by the 2nd respondent which amounts to contempt of this Court and the 3rd respondent has no authority to prepare such a report. Therefore it is necessary to have a look at Ext.P4.
30. Ext.P4 is prepared by the 3rd respondent-CESS. CESS has stated in this report that it is an agency authorised by the Government of India to prepare CRZ report. The facing sheet/page shows that it is prepared for Azhimala Beach Resorts Pvt Ltd. Sri. Nobert Lawrence who filed the writ petition was the Managing Director of Azhimala Resorts. The Documentation page shows that it is CRZ status report No. CESS-CRZ-22-2006 with the title: Demarcation of HTL/LTL for Azhimala Beach Resort and the sponsoring agency for the said CRZ report is Azhimala Beach Resorts. The report is authored by M/s K.V.Thomas and N.P.Kurian. In the abstract of the report, it is stated that based on the judgment of this Court to demarcate the HTL and No Development Zone, for the Azhimala Beach Resorts, the HTL and LTL were identified in the field based on geomorphic signatures and demarcated on cadastral based maps. The CRZ there consists of CRZ III and CRZI(ii). It further states:
“Major part of the site is within no development zone of CRZ III. Being on cadastral maps with survey plot information, any local level officer can easily locate the position of the 200 m No Development Zone in the field”.
The detailed report begins saying that the Azhimala Beach Resorts requested CESS to prepare a CRZ report demarcating HTL and LTL with respect to the said resort; this Court has also directed to examine whether the vagaries of nature has caused any changes in the HTL from the time the resort was constructed. The report further states that coastal zone management plan (CZMP) of the State of Kerala was approved by the Govt in the year 1996. Govt of India, Ministry of Environment and Forests, has authorised 7 agencies including CESS, for demarcation of HTL and LTL for CRZ purpose. The location of the resort is explained in paragraph 1.2 specific reference to survey number 359 (part) in Kottukal village, along with a sketch. Paragraph 2 details the identification of the property with reference to the CRZ map, CZMP map,etc. It is stated that CRZ map was prepared on largescale cadastral base maps with survey plot information to facilitate easy and accurate identity creation CRZ in the field and that HTL and LTL are identified following guidelines issued by the Ministry of environment and forests, government of India. The CRZ map of the state was consulted in addition to the land use and land form data to identify the CRZ categories. Further it explains the primary field investigation on cadastral base maps; identification of the extent and status of ecosystems relevant to CRZ such as mangroves, tidal flats, seasonal beach, etc; preferring the CZMP (1995) of the state along with the land use and land form and identification of CRZ categories; preparation of CRZ map delineating the HTL, LTL and CRZ. It is stated that field investigations to identify the HTL, LTL, land use and land form were carried out during October-November 2006; position of HTL was located with respect to the survey plots; the results of investigation are presented in the form of CRZ map in 1:5000 scale wherein HTL/LTL and CRZ categories are demarcated. Paragraph 2.1 deals with base map and states that cadastral map of scale 1:5000 available with the Revenue Department, government of Kerala, which gives the survey plots information, has been used as the base map for preparing the CRZ maps. Survey plots are easily identifiable both in the maps and the field, and could form the reference locations for demarcating the HTL. Paragraph 3 provides for the details of tides and gives the table showing the tide level referred to Hydrographic data at Vizhinjam. Paragraph 4 deals with field investigations carried out. Paragraph 4.1 giving the details of land use and land form states that the coastal zone is part of a rocky coast extending from Kovalam to Adimalthura; the seafront of Azhimala resorts consists of rocky headlands; the general land use of the land part consists of coconut plantation and mixed crop; the sandy beach experiences seasonal erosion-accretion process, which is cyclic; the seasonality is dependent upon the wave climate which is in tune with seasonal changes in wave climate driven by monsoons; the width of the fair season beach is about 100 m. and the magic part of the cliff front consists of sloping and vertical rocky exposures; settlement as Spartans on this rocky coast; there are a few resorts towards north and south of the area of study. Paragraph 5 deals with coastal regulation zone and HTL. It stays “geomorphology signatures in the field, satellite imageries and/or aerial photographs such as berm crests, landward boundary of tidal flats, of cliff base where the cliff is fronting the sea, etc. are being used to identify the HTL/LTL in accordance with the CRZ notification dated 19th of February, 1991 and as given in the guidelines given by the Ministry of Environment and Forests (MoEF, 1999). Paragraph 5.1 deals with CZMP of the State and paragraph 5.2 deals with high tide line for the study area; 5.3 deals with CRZ for the study area. It is stated that being demarcated in cadastral base maps with survey plot information, the position of HTL, on the 200 meter no development zone and the 500 m CRZ are easily identifiable in the field by the respective local level officials. Paragraph 6 deals with resort development in CRZ. Paragraph 7 of the report which deals with impact of tsunami on the HTL, reads as follows:
“The HTL is demarcated based on the geomorphic signatures that define the maximum reach of water and this would not change under normal circumstances. Human interventions that significantly modify coastal processes like sediment transport and cause shoreline changes could change the morphological signatures of HTL. No major human interventions of significant consequences have been recorded in this part of the coast during the last 10 years. Morphological changes and resultant changes in the HTL could also be caused by catastrophic events like tsunami. Tsunami 2004 was a major event that could change morphology significantly.It was reported that the damages due to tsunami along the Kerala coast was maximum in sectors adjoining Kayamkulam tidal inlet. There was no significant impact of tsunami along the Pozhiyur-Vizhinjam coast (Kurian, et-al 2006) to which the coast under study forms part. The only noticeable impact in this sector was within the Vizhinjam Harbour which is about 3 km north of the study area. These indicate there were no significant changes in the HTL due to 2004 tsunami. It may also be noted that the beach morphology was mostly restored to its pre-tsunami status in those seriously affected areas.”
In the concluding portion in paragraph 8, after explaining the scale used in the sketch attached and for demarcating HTL, LTL, CRZ, etc., it is said that part of survey number 359 is in the 200 meter no development zone; resort development is permissible in CRZ landward of the 200 meter no development zone subject to conditions; At least a gap of 20 m width has to be provided between 2 beach resorts and at least one gap has to be there within 500 m along the coast. The report further provides for the references made by the experts which include CZMP 1995, Kurian N. P, Pillai.A. P, Rajith, K. Krishnan, B. T. M and Kalairasan. P, 2006; Inundation characteristics and geomorphology kill impacts of December 2004 tsunami on Kerala coastal Current science, v. 90, no.2, 2006 , pp. 240-249. Figure 1 of the report is the location map and figure 2 is CRZ map. From the sketch it is clear that the Azhimala Resorts was found to be situated within the no development zone. It further states that being demarcated in cadastral base maps with survey plot information, the position of HTL, the 200 m No Development Zone and 500 m in CRZ are easily identifiable in the field by the local level officers and the concerned parties.
31. From Exhibit P4 report it is crystal clear that the 3rd respondent prepared the report based on the request of the petitioner and that the 3rd respondent is one of the 7 agencies authorised by the government of India, which has demarcated the HTL, no development zone and assessed the impact of tsunami over the coast there. The contention raised for the additional petitioner, that it was for the 2nd respondent to execute the directions of this Court and the 3rd respondent does not have any authority to take any action in implementation of the directions of this Court; even if it is requested by or authorised by the 2nd respondent, the 2nd respondent ought to have sought permission of this Court, in case the demarcations had to be got done by the 3rd respondent, etc. are absolutely unsustainable and devoid of any merit.
32. In this context it is necessary to have a look at the CRZ notification, 1991, which was issued by the Central Government, in exercise of its powers under clause (d) of sub rule 3 of Rule 5 of Environment (Protection) Rules, 1986, declaring the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 m from the high tide line and the land between the Low Tide line and the HTL as CRZ and imposing several restrictions on setting up and expansion of industries, operations or processes, etc., in the said coastal regulation zone. Clause 1 of this notification reads as follows:
“i. For the purpose of this notification the High Tide Line means the line on the land up to which the highest waterline reaches during the spring tide. The High Tide Line shall be demarcated uniformly in all parts of the country by the demarcating authority so authorised by the Central government, in accordance with the general guidelines issued in this regard.
(emphasis supplied) ]
Under Annex.I of the notification, Clause 6(1) provides that the coastal stretches within 500 metres of High Tide Line on the landward side are classified into four categories, namely: CRZ I , CRZ II, CRZ III and CRZ IV, for regulating development activities. “CRZ-III :Areas that are relatively undisturbed and those which do not belong to either Category-I or II. These will include coastal zone in the rural areas (developed and undeveloped) and also areas within Municipal limits or in other legally designated urban areas which are not substantially built up. Clause 6(2) provides that the development or construction activities in different categories of CRZ area shall be regulated by the concerned authorities at the State/Union Territory level, in accordance with the norms provided therein. As per these norms in CRZ-III, the area upto 200 metres from the High Tide Line is to be earmarked as “No Development Zone”. No construction shall be permitted within this zone except for repairs of existing authorised structures not exceeding existing FSI, existing plinth area and existing density and for permissible activities under the notification. Development of vacant plots between 200 and 500 metres of High Tide Line in designated areas of CRZ-III with prior approval of Ministry of Environment and Forests (MEF) is permissible for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines at Annexure-II. One of the conditions are : Sub clause ii provides: ii) The total plot size shall not be less than .4 hectares and total covered area on all the floors shall not exceed 33% of the plot size i.e FSI shall not exceed .33. The open area shall be suitably landscaped with appropriate vegetal cover. The 3rd respondent has in Exhibit P4 stated that it is one of the 7 agencies authorised by the Government of India to demarcate the high tide line and it has demarcated the same in figure 2 of the report in accordance with the guidelines issued by the Government of India. Therefore, the contentions raised by the petitioner regarding the authority of the 3rd respondent or the non-compliance of the directions by the 2nd respondent are untenable and without any bonafides.
33. Yet another contention is that the 3rd respondent, if at all made any demarcation, it is without the notice or knowledge of the petitioner. Exhibit P4 report will show that the said report was made on the basis of the request made by the petitioner-Azhimala Beach Resorts, which is described as the sponsoring agency in the documentation page also. Ext.P4 report is not challenged. The Centre for Earth science studies has as per letter dated 23.12.2006 forwarded to copies of the CRZ status report prepared by experts in the field to the Managing Director, Azhimala Beach Resorts, referring to his letter dated 10.10.2006. In the introductory paragraph of the report i.e para 1.0, it is stated that pursuant to the direction of this Court, M/s Azhimala Resorts requested it to prepare a CRZ status report. After all these requests from the petitioner, he cannot be heard to contend that the demarcation or the report was without authority or without notice or without his knowledge. Even if this Court’s direction was to the 2nd respondent, as long as the 2nd respondent is not the demarcating agency, the petitioner cannot insist that the 2nd respondent has to undertake the demarcation, that too after getting the report at his request, when the demarcation was not favourable to the petitioner.
34. The petitioner also alleged that there is no demarcation as directed by this Court with reference to the change in line that might have caused on account of vagaries of nature. Petitioner’s contention was and is that when the construction was made in 2002 and 2004, it was beyond 200 m and if at all it has come within the no-development zone it happened subsequently on account of tsunami. But all these aspects are covered in the report. It has taken into account all these matters with reference to the approved maps KCZMA, the guidelines on the issue as well the studies made on the subject. When the report is made by an agency authorised by the Government of India having the requisite expertise and that agency has described the manner in which it undertook the investigations after consulting the CZMP of the State and land form and land use data and furnished a detailed report along with the sketch, in such a manner that, as stated by the authors, any local level officers can identify the position of HTL, the no development zone as well as 500 m CRZ, there is no merit in the contentions raised by the petitioner.
35. The report is furnished after looking into the changes that might have occurred to the position of HTL in the area, on account of vagaries of nature. The authors of the report have stated that the demarcation of HTL is done on the basis of geomorphological signatures that define maximum reach of water and this do not undergo any change in normal circumstances. It is also stated that no changes were recorded during the past 10 years (from 2006). Even on account of tsunami, the particular area was not seen affected. Even the areas affected were by that time restored. If no changes were recorded in the preceding 10 years of the report, ie. from 1996 to 2006, the contention of the petitioner that the constructions were not in the no development zone in the year 2002-03, i.e at the time when it was constructed and there occurred changes in the HTL, are only to be rejected as baseless. In these circumstances there is no substance in the contention that the judgment Ext.P3 is not complied with.
36. The I.A.No.12794 of 2016 to transfer this writ petition to the National Green Tribunal has to be considered in this background. In the previous paragraphs, I have already found that the directions in Ext.P3 judgment have already been complied with. The issues involving the impact of the provisions of CRZ notification were already considered by this Court in Ext.R4(a) judgment which was never challenged by the petitioner. This Court had already directed that the constructions in no development zone should be demolished. On the other hand, when the constructions were found to be in the no development zone -within 200 m of HTL, in the inspection conducted on 17.1.2006 pursuant to Ext.R4(a) judgment, the petitioner approached this Court filing W.P.(C) No.6506 of 2006 with the following prayers, as can be seen from the judgment dated 28.7.2006 (produced as Ext R3 (f) in W.P.(C) No.11186 of 2012):
1) issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 and 3 not to disturb any huts constructed by petitioner in the 75 cents of properties in which Azhimala Beach Resorts is constructed with valid permission and permits under no. B-3- 15/47/2002-2003 to B-3-15/50/2002-2003 and B1/565/531- 03-04 to B1/565/534-03-04 of the 3rd respondent, pending final decision of the Union of India, Ministry of Environment and Forest on Ext P1 and P6 representations.
2) issue a writ of mandamus directing 2nd respondent to consider and comply with the request in Ext P5 and submit the report before the 2nd respondent within a reasonable time.
3) issue a writ of mandamus 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.
37. The 2nd respondent herein was the 1st respondent in that writ petition; 1st respondent Panchayat was the 3rd respondent and CESS-the 3rd respondent herein was the 2nd respondent therein. The 2nd prayer was for a direction to obtain a report of the CESS, and when the report of CESS also found against the petitioner, the contention is that CESS has no authority and Ext.P3 judgment is not complied with. Ext.P2 representation in this writ petition was Ext.P5 in W.P.(C). No.6506/2006. In Ext.P2 representation, the petitioner stated that the company has made an earnest request to CESS on 21.2.2006 to prepare a detailed status report for company’s project in the area. The request of Azhimala Resorts in that representation was not to initiate action against it in terms of the directions in Ext.R4 (a) judgment till the status report with respect to construction of resort in the property, as per the application of the company before the CESS, was prepared. It was further requested that the said report may be forwarded to the Central Government for environmental clearance and appropriate action before initiating any proceedings.
38. Regarding the 3rd prayer it is relevant to note that the 2nd respondent -KCZMA did not file any counter affidavit in any of these writ petitions. However in Ext.R4(e), the statement of facts forwarded to the office of the Advocate General on 2.9.2006, in respect of W.P.(C) 6506/2006 (which the 4th respondent obtained on application under the Right to Information Act), it was stated:
“Application from the petitioner duly forwarded by the Kottukal Panchayat (through proper channel) with details like building plan, estimate, and CRZ report has not been received by the Kerala Coastal Zone Management Authority till date. Hence the Kerala Coastal Zone Management Authority is not in a position to consider CRZ clearance for the construction of building made by the petitioner and forward the same to the Ministry of Environment and Forests, Government of India.
The direction of the Hon’ble High Court was to forward the application to Central Government if it was already received on the date of judgment, (i.e 8th November 2005) or if it is submitted through proper channel within a month. The application with complete details through proper channel are not received till date. The application shall be forwarded along with CRZ status report, approved building plan, etc, through the Grama Panchayat. Hence the contention that application is pending with the Kerala Coastal Zone Management Authority is not true.”
39. Regarding the 1st prayer with respect to the constructions in accordance with the permits, the contention of the 1st respondent Panchayat in each of the writ petitions requires consideration. 1st respondent Panchayat had in para 5 of Ext.R4(j) counter affidavit filed in W.P.(C) 19547/04 stated:
“It is submitted that the 2nd respondent obtained four door numbers for four structures from the Panchayat by putting up temporary sheds as per the permit. But on subsequent verification it is seen that the 2nd respondent has effected structural alteration by converting the structures as permanent buildings.”
But in the counter affidavit filed in these writ petitions the Panchayat changed their stand stating that the constructions were in accordance with the permits. But the orders impugned in the W.P.(c).No.25739/2012, passed by the LSGTI and in the W.P. (C).No.11186 of 2012 passed by the Ombudsman as well as Ext. R4(m) sale deed in favour of Smt. Prasannakumari, the petitioner in those writ petitions and thereafter the sale deed Ext.R4(n) in favour of the additional petitioner would show the variation in the plinth area, mode of construction, violation of the undertaking of the petitioner at the time of granting permit, etc. It is also pertinent to note that one of the requirements for development of Beach Resorts in CRZ area is the extent of area of the plot shall be 0.4 hectares. The case of the petitioner as well as additional petitioner is that their resort is in 75 cents of land. While the 1st respondent is adopting inconsistent stand, the 2nd respondent does not even choose to file any counter affidavit. Therefore the contention of the 4th respondent that respondents 1 and 2 who are the authorities to observe and implement the CRZ notifications are colluding with the petitioner, cannot be ruled out.
40. In these circumstances, I do not find any bonafides in seeking a transfer of this case to the National Green Tribunal. However, since the matter was argued at length, I would examine the judgments relied on by the learned Counsel on either side in support of their respective contentions in respect of I.A.No. 12794 of 2016.
41. The learned counsel for the petitioner, relying on the judgment of the Apex Court in
# Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326
and the judgment of the Full Bench of the Gujarat High Court in 2015 supreme (Gujarat) 41, asserted that it is a matter which requires consideration by the Green Tribunal in the light of section 38 (5), which the Apex Court interpreted and held that it is for the High Court to exercise the discretion whether the cases which were pending even before the NGT Act came into force, were to be transferred, when it involved issues relating to environmental laws or under the statutes coming within the purview of National Green Tribunal. The relevant portion of the judgment in
# Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326
read as follows:
40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short “the NGT Act”) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short “NGT”). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned.
41. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule I of the NGT Act, should also be dealt with by the specialised tribunal, that is, NGT, created under the provisions of the NGT Act. The courts may be well advised to direct transfer of such cases to NGT in its discretion, as it will be in the fitness of administration of justice.
42. Normally, we would have even transferred this case to NGT. However, as it does not involve any complex or other environmental issues and primarily requires administrative supervision for proper execution of the orders of the courts, we have considered it appropriate to transfer this case to the High Court of Madhya Pradesh. We may notice that the supervisory work concerns itself with regard to the proper functioning of the various committees, which were constituted under the orders of the court, to ensure proper running of the hospital established by the Government and health care facilities available to the Bhopal Gas Victims.
Section 14 of the NGT Act which provides for the jurisdiction of the Tribunal reads as follows:
# 14. Tribunal to settle disputes
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
42. On establishment of the Tribunal under the NGT Act, the jurisdiction of civil courts to entertain appeals as well as to settle disputes over claims which can be adjudicated by the Tribunal is barred under Section 29, which reads as follows:
# 29. Bar of jurisdiction
(1) With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.
(2) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court.
All matters pending before the National Environmental Appellate Authority as on the date of establishment of the Tribunal shall stand transferred to the NGT, under Subsection 5 of Section 38, which reads as follows:
(5) All cases pending before the National Environment Appellate Authority established under sub-section (1) of Section 3 of the National Environment Appellate Authority Act, 1997 (22 of 1997) on or before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, shall, on such establishment, stand transferred to the said National Green Tribunal and the National Green Tribunal shall dispose of such cases as if they were cases filed under that Act.
However, in paragraph 41 of the judgment, the Apex Court found that it is only proper that all the matters involving issues that can be adjudicated by the NGT are transferred to the NGT, including those filed before the establishment of the Tribunals.
43. In the judgment dated 12.02.2015 of a Division Bench of the Gujarat High Court in
# Salaya Machhimar Boat Association through Vice President V Union of India reported in 2015 0 Supreme (Guj) 41
the issue involved was whether a writ petition challenging an order issued on 17.8.2009, filed in the year 2011, after the NGT Act came into force, should be transferred to NGT, in the light of the judgment in Bhopal Gas Peedith Mahila Udyog Sanghatan case (supra). It was found that irrespective of the provisions contained in Section 16(h) of the NGT Act, in view of the judgment of the Apex Court and in view of the fact that the order was passed in 2009, the case should be transferred in the discretion of the High Court since complex questions relating to environmental issues were involved. In that case the environmental clearance granted to Essar Bulk Terminal Ltd, in the year 2009, for construction of a jetty in the marine sanctuary was under challenge. The learned Judges decided to exercise their discretion to transfer the case, in the light of the judgment of the Apex Court.
44. But the issue involved in this writ petition is whether demarcation is done as directed in Ext.P3 judgment. Ext.R4(a) judgment was never challenged by the petitioner. The findings in Ext.R4(a) judgment that there cannot be any construction in the no development zone; regarding the permits granted by the 1st respondent, subject to the undertaking furnished by the petitioner, the necessity for approval for the constructions beyond 200 meters, as per the CRZ notifications, are in no way interfered with in Ext.P3 judgment. Ext.P4 report shows that the eminent experts in the field has undertaken the exercise in terms of the directions. In this background, the question to be considered is whether this Court should exercise its discretion as done by the Gujarat High Court.
45. There is no environmental clearance granted in this case, even though the 2nd respondent does not file any counter affidavit in these cases. The report Ext.P4 and the report produced in the Writ petition along with sketch, pursuant to the interim order passed by this Court would show that major part of the constructions in respect of the resort in question is in the no development zone. The issue is already decided by this Court. Demarcation is already done by the authorised agency-CESS. As rightly contended by the learned Senior Counsel, the observations of the the Apex Court in
# Vaamika Island (Green Lagoon Resort) v. Union of India, 2013 (3) KLT 677 (SC)
is an answer to the contention raised by the petitioner. In that case this Court’s judgment in
# Ratheesh v. State of Kerala, 2013 (3) KLT 840
rejecting a similar request for transferring the writ petition to the National Greens Tribunal was upheld. In that case Vaamika Islands filed a writ petition challenging the inclusion of its properties in Map no.32A of CZMA and categorization of the same in CRZ I. There the 8th respondent in that writ Petition had filed a writ petition challenging the permits granted to the petitioner therein, and sought for direction to demolish the constructions made in violation of CRZ regulations. Sri. N.Sukumaran relied on the following observations of the Apex Court in answer to the petition seeking transfer to NGT:
“8. We are of the view that the High Court has rightly entertained the Writ Petition taking into consideration the larger public interest and the contention that the matter should have been referred to the National Green Tribunal cannot be accepted, in the facts and circumstances of the case, especially when the petitioner itself, has invoked the jurisdiction of the High Court.”
46. With reference to the contention that CESS has no authority to undertake demarcation and that the authors of Ext.P4 CRZ report do not have any expertise for the same, and the prayer in the I.A filed by the additional petitioner to appoint experts for demarcation, it is worth to refer the following:
“9. We have gone through the impugned judgment, the SLP and the written statement filed by MoEF in Writ Petition No. 8299 of 2012, counter affidavit filed by KCZMA in W.P. (C) No. 2947 of 2013 before the High Court and the report of Dr. K.V.Thomas of CESS and Dr. Kokkal, Director, KSCSTE.
It is to be noted that the authors of Ext.P4 report include the very same expert of CESS, who submitted the reports in the case of Vaamika resorts. The demarcation and preparation of the plan included in Ext.P4 report was based on KCZMP, the guidelines of MoEF, and cadastral maps prepared by the Survey Department of Kerala Government were used as base map for preparation of CZMP of the State and there is nothing further to demarcate. The petitioner’s request in Ext.P2 was to keep the proceedings pending till the CRZ status report was received from CESS. When that report came, other factually incorrect contentions are raised. Therefore, there is every reason to accept the contention of the party respondent that the petitioner wants to protract the implementation of the judgment in Ext.R4(a), raising untenable contentions without making any attempt for getting approval from the Ministry of Environment and Forests apparently for the reason that the extent of property is only 75 cents whereas 0.4 hectares of land is the mandatory requirement for construction of beach resorts. There is total prohibition for constructions upto 200 metres. Constructions beyond 200 metres require approval of the Government of India. It is also relevant to note that there was a stay of further constructions from 7.8.2004 onwards, as can be seen from Ext.R4(g), to R4(i) and Ext.R4(a) judgment. A perusal of the sale deeds Ext.R4(m) and the permits would show that there is substance in the contention raised by the 4th respondent that the petitioner wants to get the implementation of Ext.R4(a) protracted.
47. Learned Counsel for the petitioner relied on the judgment in
# Goa Foundation v. Diksha Holdings (P) Ltd., (2001) 2 SCC 97
and argued that the court’s approach should be to achieve an appropriate balance between the development and the environment. In the above case, the Goa Foundation was challenging the environmental clearance granted by the Government of India and the permission granted for setting up the hotel complex. Even the categorisation of the area as CRZ-III was under challenge. However the Apex Court found that the Central Government had taken due care in obtaining reports from the authorities of the Goa Government as well as deputed its own scientists to have a spot inspection and report about the feasibility of the hotel project being cleared up. It was in those circumstances, after seeing various reports that the Apex Court came to the conclusion that the disputed plot was available for development by way of construction of hotel/beach resort in the development plan of Goa and that the activities in question cannot be held to be prohibited activity under the initial notification of the Government of India.
48. But in the present case, there is no environmental clearance. The finding in Ext.P4 is that major portion of construction is in ‘no development zone’. Construction in areas beyond 200 m, requires prior approval; but it is seen that the petitioner has not even submitted proper application; construction was seen in violation of permit; the petitioner has a contention that the height of the cliffs are to be reckoned for demarcating the 200 m zone in which event the construction will be beyond 200 m. The report Ext.P4 is made after demarcation by those whose expertise is recognised by this Court as well as the Apex Court. They have stated that the demarcation was done in accordance with the guidelines in force. There is no reason to disbelieve such experts of nationwide reputation. The petitioner who requested the 3rd respondent to furnish status report is now challenging the authority of CESS and even says that the demarcation was made without notice to them. At the same time they do not challenge Ext.P4 report. Apart from all these another demarcation also is made pursuant to the interim order of this Court passed on 5.3.2007, with notice to the parties, which is also objected on various grounds, which I find are untenable. The demarcation was already done in Ext.P4 by an agency authorised under the provisions of CRZ notification. It is over and above that a further demarcation was ordered, before going into the merits of the contentions in the writ petition on the interim order. All these reports will show that the major part of the construction is in no development zone and for the rest, there is no permission from the Government of India. Petitioners complain that there are several other resorts in the very same position and there is no action against those resorts.
49. As contended by the learned Senior Counsel, relying on the decisions reported in
# Piedade Filomena Gonsalves v. State of Goa, (2004) 3 SCC 445
# UT of Lakshadweep v. Seashells Beach Resort, (2012) 6 SCC 136
equitable considerations are wholly misplaced when there is violation of CRZ notification; number of inspections will not improve the situation. Regarding the constructions made in the Goa case, the Goa State Coastal Committee for Environment, found that the entire construction was raised within 200 metres of HTL, that too, on existing sand dunes in violation of the CRZ notification; the Apex Court observed that the CRZ Notifications have been issued for protecting environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. In the case from Laksha Dweep (supra), where the High Court permitted the respondent in that case to continue his activities despite the violation of CRZ Regulations, and even without permission from the Administration, observing that similarly situated others were permitted to operate their resorts as home stay, the Apex Court held as follows:
“30. The High Court’s order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter.
31. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ court.”
50. From the conduct of the petitioners it can be seen that they have been adopting one or other delaying tactics ever since the demarcation was done based on Ext.R4(a) judgment, on 17.1.2006. W.P.(C). No. 6506/2006 was filed alleging that Ext.P2 representation was not considered. The request in that representation was to keep in abeyance the proceedings for demolition till the status report from CESS was received. When that report was received finding that there was no change recorded in HTL for the last 10 years, they filed this writ petition saying that direction in Ext.P3 judgment was not complied with and CESS does not have any authority and that the direction in Ext.P3 judgment was to the 2nd respondent. The learned Counsel for the petitioner relying on the judgment of the Apex Court in
# Baradakanta Misra v. Bhimsen Dixit, AIR 1972 SC 2466
argued that the conduct of the 2nd respondent in not undertaking the demarcation as directed in Ext.P3 and authorising the 3rd respondent to do the same without getting permission from this court is contumacious, amounting to contempt of this Court. I have already found that the report of CESS was at the request of the Azhimala themselves as evident from Ext.P4 and Ext.P2. CESS is one of the 7 agencies authorised by the Government of India in terms of the provisions of CRZ notifications issued from time to time and expertise of the authors of the report is recognised by this Court and the Apex Court in the judgments in Vamika, etc (supra), furnished the report based on the request of the petitioner and undertook demarcation in terms of the direction in Ext.P3 judgment, in accordance with the prevailing guidelines of the Ministry of Environment and Forest. In this case, the issue was already decided in Ext.R4(a) judgment, which remains unchallenged. The only direction in the W.A was to demarcate the 200 meters of HTL which was in existence at the time of construction of huts in the property, considering consequences due to the vagaries of nature. The CESS has, in the status report of 2006, thereupon explained the position of HTL for the last 10 years, with reference to scientific data and authenticated map of Kerala Coastal Zone, 1995. Moreover another demarcation was undertaken in terms of the interim order passed on 5.03.2007. In this context, it is also necessary to examine the conduct of the petitioners as revealed from the subsequent writ petitions, where the contention of the petitioners is that there are several other resorts in the beach which do not face any action, despite the proximity to HTL. From the orders impugned therein and from the proceedings, it is also clear that there are no huts, in tune with the permits issued by the Panchayat or undertaking of the petitioner. Considering the fact that the petitioner has not submitted any application through proper channel for permission from the Government of India, for which they requested for the status report and the statement in the Ext.R4(e) statement of facts of the 2nd respondent that no application is received from the petitioner as directed in Ext.R4(a) judgment, in respect of constructions beyond 200 metres of HTL and the fact that 0.4 hectares plot is required for development of the beach resorts as per the CRZ notification, it can be seen that there is absolutely no bonafides in the Writ Petition. Hence I do not find any reason to transfer this W.P.(C) No.5482 of 2007 to the National Greens Tribunal. There is no reason for interfering with Exts.P5 or P6 issued on the basis of Ext. P4 report. Hence W.P.(C) No.5482 of 2007 is dismissed.
W. P.(C) No.11186 of 2012
51. The order Ext.P6 was passed by the Ombudsman, seeing that the action of the Panchayat in effecting mutation in favour of the petitioner was contrary to Ext.P3 order of Ombudsman in O.P.1055/2008, seeing that there were no buildings physically available in accordance with the permit issued or as mentioned in the assessment register. The written statement filed by the Secretary of the Panchayat in O.P.No.108/11 produced as Ext.R3(h) in this writ petition and the sale deed Ext.R3(e) in favour of the petitioner and extract of assessment register Ext.R3(f) would show that the structures for which permits were given as per Ext.P1 series were not those which were physically available i.e 4 huts with one room in 48 sq.mts with thatched roof and mud walls were replaced by concrete buildings with 24 rooms in 896 sq.metres with modern facilities worth one crore seventy lakhs. If the order Ext.P6 is to be interfered with, for want of jurisdiction, it will result in revival of Ext.P4 order by which nonexistent buildings are given numbers, under the guise of Ext.P3, but in total violation of the same. Going by the same principle, Ext.P3 also will have to be set aside in which event, Ext.P4, issued based on that cannot survive, as a result of which there cannot be any mutation. In these circumstances, I do not find any reason to interfere with the impugned orders under Article 226.
W.P.(C) No. 25739 of 2012
52. The Tribunal for Local Self Government Institutions has passed the order Ext.P4 on 6.1.2011 upholding Ext.P3 order passed by the Panchayat on 30.11.2010, directing to stop the constructions, as all those were found in violation of the judgment in W.P.(C).No.19547/2004. The Tribunal has passed the order after going through the files of the Panchayat as well as KCZMA and the sale deed and seeing that construction was already made in 841 sq.metres in violation of the building permits given for 192 sq.metres as well as CRZ notification and therefore the petitioner cannot take any shelter under Rule 10 of the Kerala Municipality Building Rules. It has also found that even for decoration works there was no intimation as on 30.11.2010, when the Panchayat passed orders. The Tribunal has passed the order after going through the files and the judgments in all the cases filed by ad against Sri.Nobert Lawrence relating to the resort and after perusing the reports after demarcation of HTL in terms of the directions issued by this Court. The order of the Tribunal does not suffer from any infirmity. Hence I do not find any reason to interfere with the same. The Writ Petition is accordingly dismissed.
In the result, all the writ petitions are dismissed.