Dr. Thulika Rohan v. Varkala Municipality and Kerala Coastal Zone Management Authority (Addl. R2 suo motu impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** ## **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** ## **WP(C) NO. 2622 OF 2012** ## **PETITIONER:** **DR.THULIKA ROHAN, AGED 39 YEARS, HAMZAM, MISSION COMPOUND, ROBINSON ROAD, PALAKKAD-678 014.** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH** ## **RESPONDENTS:** **1 VARKALA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, OFFICE OF THE VARKALA MUNICIPALITY, VARKALA-696 141. 2 ADDL. KERALA COASTAL ZONE MANAGEMENT AUTHORITY (ADDITIONAL R2 IS SUO MOTU IMPLEADED AS PER ORDER DATED 29/10/2021 IN WP(C) NO.2622/2012.)** **BY ADVS. G.S.REGHUNATH SRI.M.P.PRAKASH, SC, KCZMA SHRI.K.SIJU, SC, VARKALA MUNICIPALITY** ## **OTHER PRESENT:** **ADV. M P PRAKASH -SC, KCZMA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C)No.2622 of 2012** **2** ## **JUDGMENT** **Dated this the 26[th] day of November, 2021** Ext.P4 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram, dated 05.09.2021, is under challenge of this writ petition. As per Ext.P2 order of the 1[st] respondent, Municipality, an application preferred by the petitioner, seeking regularisation of the buildings constructed was rejected. The challenge to Ext.P2 order before the Tribunal for Local Self Government Institutions culminated in Ext.P4 order, where the learned Tribunal took stock of the cadastral map of the seashore of Varkala Municipality prepared by the Center for Earth Science Studies (CESS), Thiruvananthapuram, to find that the petitioner's property comes under CRZ-I notified area. On such premise, the learned Tribunal confirmed the order rejecting the regularisation sought for by the **W.P(C)No.2622 of 2012** **3** petitioner. 2. When this matter was taken up for consideration on 29.10.2021, learned counsel for the petitioner, relying upon the judgment of the Honourable Supreme Court in _**P.A. Fazal Gafoor v. State of Kerala (SLP Civil No.5038/2002)**_ dated 25.04.2003, submitted that the Local Self Government Tribunal is not competent to take a call whether a property is included in the Coastal Regulatory Zone. Nor is the Panchayath entitled to refuse an application on such premise. According to the learned counsel, the proper course for the Panchayth was to forward the matter to the Kerala Coastal Zone Management Authority, in case, the Panchayath entertained a doubt as regards the inclusion of the subject property within a Coastal Regulatory Zone. 3. Based on the submissions made by the learned counsel for the petitioner, this Court _suomotu_ impleaded the Kerala Coastal Zone Management Authority as per order dated 29.10.2021. **W.P(C)No.2622 of 2012** **4** Accordingly, the authority is represented today by Adv.M.P.Prakash, Standing Counsel for Kerala Coastal Zone Management Authority. 4. Learned Standing Counsel would support the submission made by the learned counsel for the petitioner to the effect that the Local Self Government Tribunal is not competent to enter upon a finding as regards inclusion or exclusion of a property within the Coastal Regulatory Zone. According to the learned Standing Counsel, the competent authority is the Kerala Coastal Zone Management Authority, ie, additional R2. Learned Standing Counsel invited the attention of this Court to the CRZ notification of the year 1991, as also, the Coastal Zone Management Plan, 1996. The same was replaced by another CRZ notification of the year 2011, followed by the Coastal Zone Management Plan, 2019. However, we are not concerned with the subsequent notification of the year 2011, as also, the plan of the year 2019, having regard to the **W.P(C)No.2622 of 2012** **5** facts of this case. 5. Learned counsel for the petitioner also pointed out the judgment of this Court in _**Antony v. Chellanam Grama Panchayat 2009 (3) KLT 334,**_ to point out that a Panchayath is not competent/entitled to cancel the building permit for the alleged violation of the Coastal Zone Regulations. In view of the judgment of the Honourable Supreme Court in _**P.A. Fazal Gafoor**_ (supra), as also the judgment of this Court in _**Antony**_ (supra), coupled with the submissions made by the learned Standing Counsel for the Kerala Coastal Zone Management Authority, this Court is of the view that Ext.P2 order rejecting the petitioner's application for regularisation, on the finding that his property is included in CRZ-I zone, is bad in law. Consequentially, Ext.P4 order of the Tribunal also cannot be sustained. The Municipality should have forwarded the application for regularisation made by the petitioner to the Kerala Coastal Zone Management Authority. **W.P(C)No.2622 of 2012** **6** 6. Learned counsel for the Municipality maintained that the petitioner's property is coming within the CRZ-I Zone. However, no authority has been placed before this Court, to show that the Panchayath has got the power to reject an application for regularisation, on the premise that the subject property is included in CRZ-I Zone. No material contrary to the submissions made by learned counsel for the petitioner and the Standing Counsel for the Kerala Coastal Zone Management Authority has been placed before this Court by the learned counsel appearing for the Municipality. 7. In the circumstances, Ext.P4 order of the Tribunal is hereby set aside. It will be open for the petitioner to prefer necessary application in the prescribed format to the 1[st] respondent Municipality, who, in turn, shall forward the same to the Kerala coastal Zone Management Authority, along with all other necessary documents as envisaged by law. The Kerala Coastal Zone **W.P(C)No.2622 of 2012** **7** Management Authority is directed to dispose of such application, if preferred, as expeditiously as possible, based upon which the 1[st] respondent Municipality shall pass appropriate orders in the petitioner's application for regularisation of the constructions. This writ petition is disposed of as above. ``` Sd/- ``` ``` C.JAYACHANDRAN JUDGE ``` NR/26/11/2021 **W.P(C)No.2622 of 2012** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT-P1 SOME PHOTOGRAPHS OF THE AYURVEDIC DISPENSARY EXHIBIT-P2 TRUE PHOTOCOPY OF THE ORDER NO.32/2011, DATED 24TH JUNE, 2011. EXHIBIT-P3 TRUE PHOTOCOPY OF THE JUDGMENT IN P.A.FAZAL GAFOOR VS STATE OF KERALA, IN SLA (CIVIL) NO.5038/2002, DATED 25TH APRIL, 2003. EXHIBIT-P4 TRUE PHOTOCOPY OF THE ORDER IN APPEAL NO.471 OF 2011, DATED 05-09-2011.** **//TRUE COPY// PA TO JUDGE**