Albin M.A @ Ambrose v Thrikkakara Municipality and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE S.MANU ``` ``` WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946 WA NO. 218OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 18/1/2024 IN WP(C) NO.26886 OF 2023 ``` ``` OF HIGH COURT OF KERALA ``` ## **`APPELLANT/ADDITIONAL RESPONDENT NO.4:`** ``` ALBIN M.A @ AMBROSE, AGED 32, S/O. ANTONY, 'MANPURAKAL', THUTHIYOOR, KAKKANAD, RSEL P.O, ERNAKULAM DISTRICT, PIN - 682037. PIN - 682037 ``` ``` BY ADVS. ALEXANDER JOSEPH TERESA C. JOSEPH AKHILASREE BHASKARAN ANTONY NIKHIL REMELO ``` ``` RESPONDENTS/PETITIONER AND RESPONDENTS 1&2 AND ADDITIONAL RESPONDENT ``` ``` NO.3: ``` ``` 1THOMAS CHACKO AGED 58 YEARS ``` ``` FLAT NO.7B, C.C.34/1129, SKYLINE SOLITARE, EDAPPALLY P.O., ERNAKULAM DISTRICT-692024, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR. TONY JOSEPH, AGED 62 YEARS, SON OF CHETTUPUZHA VARGHESE JOSEPH, RESIDING AT 7A SHANTHI KOITHARA, K.P.VALLON ROAD, KOCHI., PIN - 682020 ``` ``` 2THRIKKAKARA MUNICIPALITY MUNICIPAL OFFICE, NGO QUARTERS, MAVELIPURAM ROAD, THRIKKAKARA, THRIKKAKARA P.O.,REPRESENTED BY ITS SECRETARY., PIN - 682030 ``` ``` 3THE DISTRICT LEVEL COMMITTEE OF COASTAL ZONE MANAGEMENT AUTHORITY ``` ``` REPRESENTED BY ITS SECRETARY, DISTRICT TOWN PLANNER, OFFICE OF DISTRICT TOWN PLANNER, LSGD PLANNING, DPC SECRETARIAT BUILDING, 4TH FLOOR, CIVIL STATION, KAKKANAD ERNAKULAM., ``` ``` WA NO. 218 OF 2024 ``` -:2:- ## **`PIN - 682030`** ``` 4KERALA COASTAL ZONE MANAGEMENT AUTHORITY - KCZMA THIRUVANANTHAPURAM, PIN - 695001 ``` ``` BY ADVS. JAGADEESH K S.JAMAL, SC, THRIKKAKKARA MUNICIPALITY PRAKASH M.P., SC, KCZMA P.B.SAHASRANAMAN(K/121/1984) ``` ``` SENIOR GOVERNMENT PLEADER SHRI K.P.HARISH ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2024, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 218 OF 2024 ``` ## -:3:- ## **J U D G M E N T** ## A.Muhamed Mustaque, Acg.C.J. The appellant is a third party, who got himself impleaded in the writ petition filed by the first respondent. The first respondent filed the writ petition challenging a stop memo issued by the Thrikkakkara Municipality. Thrikkakkara Municipality issued the stop memo citing that the construction undertaken by the first respondent is in violation of the coastal regulation zone (CRZ) notification which came into force with effect from 28/2/2019. The learned Single Judge, noting that the building permit was issued as early as on 14/02/2018 and renewed on 14/02/2021, found no legal impediment for the first respondent to undertake construction. The appellant’s argument is that he being the neighbouring resident and as the entire environment will be affected due to the construction, he has interest in this matter, and therefore, he got himself impleaded in the writ petition. To establish locus standi, the appellant relied upon the judgment of this Court in **Kunjumuhammed v. State of Kerala and another [2013 3 KHC 436]** . ``` WA NO. 218 OF 2024 ``` ## -:4:- 2. We may not have any doubt regarding the locus standi of a person residing in the neighbourhood if the construction is being undertaken in violation of the rules protecting the environment. The question in this matter is whether the CRZ notification would have a prospective application impacting any building permit already issued prior to the CRZ map and plan coming into force. 3. The appellant placed reliance on Rule 23(4) of Chapter IV of the Kerala Municipality Building Rules, 1999, which reads thus: (4) Any land development or redevelopment or building construction or reconstruction in any area notified by the Government of India as a coastal regulation zone under the Environment (Protection) Act, 1986 (29 of 1986) and rules made there under shall be subject to the restrictions contained in the said notification as amended from time to time. Therefore, in light of Rule 23(4), the learned counsel for the appellant would argue that since no construction has been undertaken, the renewal is bad, and no construction is possible from 28/2/2019 onwards when the CRZ map and plan came into force. ``` WA NO. 218 OF 2024 ``` ## -:5:- 4. Per contra, the learned counsel for the first respondent placed reliance on note to Rule 15(8) of the Kerala Municipality Building Rules, 2019. Rule 15 refers to extension and renewal of building permits. Note to Rule 15(8) reads thus: Note:— Non-commencement of any work within the period specified, if any, in a permit issued before the commencement of these rules shall not be considered as a ban for extension or renewal of permit. 5. There cannot be any doubt that the restriction placed under CRZ map and plan cannot have any retrospective effect, but it can only have a prospective application. The question therefore falls back under the Municipality Rules. Rule 23(4) refers only to fresh construction being undertaken in the land. It is to be noted that Rule 23 under Chapter IV of the Kerala Municipality Building Rules, 1999, refers to the general provisions regarding site and building requirements. It is obvious that Rule 23(4) only refers to fresh construction being undertaken overlooking any restriction contained in the notification issued under the coastal regulation zone under the Environment (Protection) Act, 1986. It never intended to operate against any construction already commenced or any construction being undertaken based on a permit already issued ``` WA NO. 218 OF 2024 ``` ## -:6:- prior to any restriction imposed. This is also the stand of the Kerala State Coastal Zone Management Authority before this Court. 6. Renewal is only a continuation of the permission already granted. It cannot be treated as a fresh permission. If the building permit was already issued prior to the issuance of the restriction, the renewal can only be in terms and conditions of the original permission granted and cannot be based on any other rules that came into force subsequent to the original permission granted unless the law otherwise states. This is also clear from the note to Rule 15(8) of the Kerala Municipality Building Rules, 2019. The question whether construction has commenced or not is irrelevant for the purpose of the CRZ notification, inasmuch as the renewal is only the continuation of the permission already granted on the same terms and conditions as the original permission. Therefore, we find no reason to interfere with the impugned judgment. The writ appeal is therefore, dismissed. However, we note that this construction being close to river, the Municipality had not yet placed any restriction on treatment of ``` WA NO. 218 OF 2024 ``` -:7:- waste or effluents that may be discharged from the building. The Municipality is bound to place restrictions regarding draining any waste into the river, and necessary orders shall be passed by the Municipality in this regard as a stipulation as part of the building permit issued. It is submitted that the application for renewal is pending. In light of the dismissal of the writ appeal, the Municipality shall act on the directions in the judgment of the learned Single Judge. ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE ACTING CHIEF JUSTICE ``` ``` Sd/- S.MANU JUDGE ``` ms ``` WA NO. 218 OF 2024 ``` -:8:- ## **`APPENDIX OF WA 218/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE COASTAL ZONE MANAGEMENT PLAN OF MAP NO KL 32 IN ERNAKULAM DISTRICT PREPARED AS PER COASTAL REGULATION ZONE 2011 PREPARED BY THE NATIONAL CENTRE FOR EARTH STUDIES ``` ``` Annexure A2TRUE EXTRACT OF THE PLAN SHOWING SURVEY NO 194 OF VAZHAKKALA VILLAGE DOWNLOADED FROM THE SITE OF THE 3RD RESPONDENT ``` ``` RESPONDENT ANNEXURES ``` ``` Annexure R.1(A)TRUE PHOTOGRAPHS SHOWING THE PRESENT STATUS OF CONSTRUCTIONS AS ON 13-2-2024 Annexure R.1(B)TRUE PHOTOGRAPHS SHOWING THE PRESENT STATUS OF CONSTRUCTIONS AS ON 13-2-2024 ```