George Antony and Manuel Mathews v. State of Kerala and Kerala State Coastal Zone Management Authority and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939 WP(C).No. 8459 of 2017 (F) --------------------------- PETITIONER(S)/PETITIONERS: ------------------------- 1. GEORGE ANTONY, AGED 52 YEARS,S/O.LATE ANTONY,RESIDING AT PAZHAMADATHIL HOUSE,MARADU.P.O,ERNAKULAM DISTRICT, COCHIN-682040. 2. MANUEL MATHEWS, AGED 47 YEARS,S/O. LATE V.S.PAILY,RESIDING AT VETTAPARAMBIL HOUSE,MARADU.P.O,ERNAKULAM DISTRICT, PIN-682040. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT ANNEX,TRIVANDRUM-695001. 2. KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY, TRIVANDRUM,REPRESENTED BY ITS CHAIRMAN,PIN-695001. 3. DISTRICT COLLECTOR, ERNAKULAM,COLLECTORATE,CIVIL STATION,KAKKANAD, COCHIN-682304. 4. TAHAZILDAR, TALUK OFFICE,KANAYANNUR,PARK AVENUE,ERNAKULAM, COCHIN-682011. 5. VILLAGE OFFICER, VILLAGE OFFICE,MARADU,COCHIN,PIN-682040. DEPARTMENT OF MINING AND GEOLOGY,COLLECTORATE, KAKKANADU,COCHIN-682030. 6. GEOLOGIST, 7. MARADU MUNICIPALITY, REPRESENTED BY ITS SECRETARY,MARADU,PIN-682304. 8. JOSEPH MAIJO, AGED 55 YEARS,S/O.LATE T.M.JOSEPH,RESIDING AT VIDYA VIHAR,CHULLIKAL,THOPPUMPADY.P.O,ERNAKULAM,COCHIN-682005. WP(C).No. 8459 of 2017 (F) -2- 9. RITIKA JOSEPH, AGED 50 YEARS,W/O.JOSEPH MAIJO,RESIDING AT VIDYA VIHAR,CHULLIKAL,THOPPUMPADY.P.O,ERNAKULAM,COCHIN-682005. 10. THE SECRETARY, MARADU MUNICIPALITY MARADU,PIN-682304. R8-R9 BY ADV. SRI.V.ABRAHAM MARKOS R8-R9 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R8-R9 BY ADV. SRI.ISAAC THOMAS R8-R9 BY ADV. SRI.HARAN THOMAS GEORGE R8-R9 BY ADV. SRI.GOVIND VIJAYAKUMARAN NAIR R2 BY ADV. SRI.K.R.SUNIL, SC, MALABAR DEVASWOM BOARD R2 BY ADV. SRI.M.P.PRAKASH, SC, KCZMA R1, R3, R4 and R5 BY GOVERNMENT PLEADER SRI.P.K.MANOJ BY SRI.T.R.RAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.11.2017, ALONG WITH WPC. 9239/2017, THE COURT ON 23-11-2017 DELIVERED THE FOLLOWING: WP(C).No. 8459 of 2017 (F) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXT.P1 TRUE COPY OF THE APPROVED CRZ PLAN IMPLEMENTED IN MARAUD MUNICIPALITY BY THE KERALA COASTAL ZONAL MANAGEMENT AUTHORITY EXT.P2 THE TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE 8TH AND 9TH RESPONDENTS BY THE SECRETARY OF 7TH RESPONDENT MUNICIPALITY EXT.P3 THE TRUE COPY OF THE APPROVED SITE PLAN OF THE BUILDING UNDER CONSTRUCTION BY THE 8TH AND 9TH RESPONDENTS EXT.P4 TRUE COPY OF THE LETTER DATED 17.06.2006 ISSUED BY THE KCZMA EXT.P5 THE TRUE COPY OF PHOTOGRAPHS SHOWING THE CONSTRUCTION OF THE BUILDING AND COMPOUND WALLS ENCLOSING THE RIVER PURAMPOKE AND PUBLIC CHANNEL EXT.P6 THE TRUE COPY OF POTOGRAPHS SHOWING THE CONSTRUCTION OF THE BUILDING AND COMPOUND WALLS ENCLOSING THE RIVER PURAMPOKE AND PUBLIC CHANNEL EXT.P7 THE TRUE COPY OF PHOTOGRAPHS SHOWING THE CONSTRUCTION OF THE BUILDING AND COMPOUND WALLS ENCLOSING THE RIVER PURAMPOKE AND PUBLIC CHANNEL EXT.P8 TRUE COPY OF THE COMMON JUDGMENT IN WRIT APPEAL NO.132/2013 DATED 02.06.2015 EXT.P9 THE TRUE COPY OF GOVERNMENT ORDER BEARING NO.1779/A2/2013 DATED 16.11.2013 EXT.P10 THE TRUE COPY OF THE CIRCULAR BEARING NO.55353/RA1/2013 DATED 09.09.2013 EXT.P11 THE TRUE COPY OF RELEVANT PAGES OF THE CRZ NOTIFICATION DATED 06.01.2011 (PAGE NOS.1,2,13,14 & 15). EXT.P12 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 01.03.2017 EXT.P13 TRUE COPY OF PROCEEDING OF 10TH RESPONDENT FOR DEMOLISHING A CONSTRUCTION WHICH IS CARRIED WITHOUT OBTAINING PERMISSION FROM KERALA COASTAL ZONE MANAGEMENT AUTHORITY BEARING NO.E2(A3)6425/2010)DATED 23.03.2015. ## RESPONDENT(S)' EXHIBITS -----------------------: NIL /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).Nos. 8459 and 9239 of 2017 ----------------------------------------------Dated this the 23[rd] day of November, 2017** ## **JUDGMENT** The first among the captioned writ petitions is filed seeking directions to respondents 2 to 7 to restrain respondents 8 and 9 from proceeding with the construction in Sy.Nos.13/3 13/5 13/6 and 13/7 of Maradu Village obtaining required permission/consent from the Kerala Central Zone Management Authority. Directions are also sought to respondents 3 to 5 to demarcate and take possession of the encroached river poramboke after removing the encroachment and illegal constructions therein and for allied reliefs. 2. W.P(C).No.9239 of 2017 is filed challenging Exhibits P4, P5, P8 and P9 notices issued by the Maradu Municipality against the construction carried out in pursuance of a building permit. Respondents 8 and 9 in W.P(C).No.8459 of 2017 are the petitioners in W.P(C).No.9239 of 2017. 3. The contention of the petitioners in W.P(C).No.8459 of 2017 is that the 8[th] and 9[th] respondents had constructed a huge building trespassing into the kayal poramboke and in total violation of the Coastal Regulation Zone notification. It is stated _**WP(C).8459 & 9239/17**_ 2 that the said respondents have reclaimed extents of Vembanattu kayal lying on the western boundary of their property. It is stated that there is a poramboke thodu from the Vembanattu kayal proceeding east along the southern boundary of the property of respondents 8 and 9. The said thodu also being subject to tidal action, no construction is possible on the landward side of the thodu to a distance of the width of the thodu. It is therefore contended that the building permit issued to respondents 8 and 9 by the Municipality was clearly on the basis of extraneous consideration and that the construction carried out without obtaining permission from the Kerala Costal Zone Management Authority was completely illegal and liable to be demolished. An index map of the Maradu Municipality prepared by the National Centre for Earth Science showing the coastal zone regulations is produced by the petitioner. Exhibit P2 building permit issued to respondents 8 and 9 as mercantile/commercial building having a total built up area of 2916.15 Sqm. is also produced and it is contended that it is clear from the building permit itself that there are encroachments into kayal as also the thodu and that no building permit could have been granted to the petitioner. It is _**WP(C).8459 & 9239/17**_ 3 stated that the Coastal Management Authority had addressed all local authorities stating that no building permit shall be issued in CRZ areas without the specific permission of the authority. It is further stated that a Division Bench of this Court in W.A.No. 132 of 2013 had expressed anxious concern over the issuance of permits by the Maradu Municipality within the Coastal Regulation Zone. The learned counsel also relied on circulars and orders issued by the Government and the Coastal Management Authority to contend that the building permit granted to respondents 8 and 9 was illegal. 4. Pursuant to an interim order dated 30.6.2017 in W.P(C). No.8459 of 2017, a site inspection was conducted by the 2[nd] respondent on 7.7.2017 and a report was produced before this Court. It is stated in the report that the Kayal lies on the western side property and a thodu on the southern side. The existing building lies at a distance of 48.4 meters from HTL of Kayal in the north side of the plot and 60.3 meters from HTL of Kayal in the south side of the plot. It is also stated that there is an existing building at a distance of 3 meters of the Kayal. It is stated that width of the thodu is 4.9 meters on the eastern side and 5.6 meters at the western side. It is stated that the survey _**WP(C).8459 & 9239/17**_ 4 records shows that the width of the thodu was recorded as 8.8 meters on the western side and 6.6 meters on the eastern side. It is stated that the commercial building is at a distance of 3.5 meters from the HTL of the thodu on the western side and 3.6 meters on the eastern side. It is stated that the Surveyor has reported that there is encroachment of water body to an extent of 5.01 Ares in the Kayal while 2.55 Ares in the thodu. It is stated that the owner of the land had submitted an application for CRZ clearance on 13.6.2017, which was found to be incomplete. It is further stated in the report as follows: ## “ _3._ _**CRZ Status:-**_ _The above site lies in Map no.33A of CZMP (1996). The owner of the land has submitted his application for CRZ clearance from KCZMA vide Lr.No.E-1/6171/16 (E-1/BA: 94/16) dtd 13.06.2017 which was found to be incomplete._ _As per the CRZ notification 2011, CRZ of all backwater islands of Kerala was reduced to 50m landward from HTL of tidal influenced Kayals/backwaters. Maradu is a backwater island where the CRZ is limited to 50m landward from HTL of Kayal or width of the water body whichever is less. Accordingly, as per the existing provisions, the CRZ of the above site is 50m landward from HTL of Kayal. The CRZ of the thodu is equal to the width of the thodu in the plot landward from HTL. The actual distance of the_ 5 _**WP(C).8459 & 9239/17**_ _commercial building from HTL of Kayal was 60.3m landward in the south side of the plot while 48.4m landward in the northern side of the plot. Obviously a marginal portion in the north west side of the commercial building under construction lies in the CRZ area of the Kayal. Similarly the southern side of commercial building lies at a distance of 3.5m landward from thodu in the west and 3.6m landward in the east. The CRZ of the thodu is 5.6m landward in the west side of the plot and 4.9m landward in the East. Hence the compound wall which lies on the south side of the plot lies in CRZ area. Similarly a marginal portion of commercial building of its south side lies in CRZ area._ _As per CRZ notification 2011, construction of building in CRZ area is a violation of the provisions of CRZ notification.”_ Survey sketches are also produced to show the lie of the land. 5. No counter affidavit has been filed by respondents 8 and 9 in W.P(C).No.8459 of 2017. However, the contentions of the parties are available in the writ petition filed by them. They have stated that they had applied for and obtained a building permit and had commenced and almost completed the construction of the building on the basis of the building permit granted. It is stated that a notice dated 7.2.2017 was received citing complaints and requiring the owners to stop construction 6 _**WP(C).8459 & 9239/17**_ of the building. Though Exhibit P6 reply was given stating that the construction in CRZ-II zone is fully complying with the norms, P8 and P9 stop memo and hearing notice were issued to them. The contention of the petitioners in W.P(C).No.9239 of 2017 is that the area where constructions were carried out by them falls within the CRZ-II category and that after having issued them with building permit, the Municipality cannot turn around and find any mistake in the grant of the same. It is further contended by the learned Senior Counsel appearing for the petitioners that the construction which violates the 50 meter line from the HTL on the Kayal side can be readily rectified by the petitioners. But the requirement treating the thodu on the southern boundary also as being prone to tidal action and the requirement to leave a clearance equivalent to the width of the thodu from HTL of the thodu is impossible for compliance at this point of time, since the construction is already complete and it is not possible at the point in time to reconstruct the building with the said clearance. It is submitted that the plot being an extensive one, if the objection had been taken at the time of consideration of the petitioner's application for building permit, the construction could have been carried _**WP(C).8459 & 9239/17**_ 7 out with the required distance from the thodu. The Municipality, after having issued building permit to make the construction without reckoning the thodu as being subject to tidal action cannot now heard to say that the required set back from the thodu is not available. Relying on the judgments of in W.A.132 of 2013, W.P(C).No. 403 of 2016 and the decision of this Court reported in _**Kerala Coastal Zone Management Authority v. Pearls Infrastructure Projects Ltd.**_ [2017(1) KLT 602] and the interim order issued by the Apex Court in SLPs from the judgment in W.A.132 of 2013, it is contended that this Court has clearly held that where a building permit is issued by the competent local authority, the local authority cannot turn around at a later point of time and say that the building permit was not one properly granted. It is further contended that in the instant case, there is no challenge to the building permit issued to the petitioner. Relying on the findings of the Munsiff's Court in O.S.No. 1576 of 2018, it is contended that the petitioners who are later purchasers of the property has no responsibility whatsoever with regard to any encroachment into the Kayal or its poramboke. 6. The learned counsel appearing for the Municipality 8 _**WP(C).8459 & 9239/17**_ would contend that the Municipality had granted the building permit on the understanding that the property was situated in CRZ-II zone and all that was required to be noticed was the distance available from the Kayal. It is stated that in Corporation limits construction is permitted leaving a margin of 50 meters from the high tide line and it is stated that the construction violates the said distance rule only marginally. It appears from the report of the 2[nd] respondent that the 2[nd] respondent has also taken a stand that construction leaving a 50 meter margin from the high tide line from the Kayal is permissible. The learned counsel appearing for the 2[nd] respondent contended that the construction being in a coastal regulation zone, permission from the 2[nd] respondent was necessary before the building permit is issued. It is contended that though the petitioners had applied for a clearance from the 2[nd] respondent, the same was made after obtaining the building permit. 7. I have considered the contentions advanced. It is clear that the petitioner had carried out the construction on the basis of a building permit issued by the competent local authority. If construction as sought for was not permissible going by the _**WP(C).8459 & 9239/17**_ 9 provisions of the Coastal Regulation Zone notifications, it was for the Municipality, who was well aware of the said prohibitions to have informed to the petitioners that such construction was objectionable. The further construction with regard to the requirement of leading the width of the thodu on the southern side as clearance for the building also does not appear to have been noticed by the Municipality while issuing the building permit. After having issued a building permit and permitted the construction to be carried out almost to the stage of completion of the structure, it would not be open for the Municipality to then contend that the building permit itself was granted in violation of the binding CRZ notifications and that the construction therefore cannot be carried out or completed. As regards W.P(C).No.8459 of 2017 as well, I notice that there is no challenge was raised to the building permit issued to respondents 8 and 9. The 1[st] petitioner claims to be a Ward Member of the Maradu Municipality for the year 20102015 and the 2[nd] petitioner is a social activist within the Maradu Municipality. It was further contended that there are encroachments into the Kayal and thodu by the petitioners or their predecessors-in-interest which vitiate the entire _**WP(C).8459 & 9239/17**_ 10 proceedings including the grant of the building permit. This is definitely a matter which should have been taken up by the petitioners at the relevant time, ie. when the building permit under consideration of the local authority or at least immediately on the commencement of the construction on the property. This Court in _**Kerala Coastal Zone Management Authority's case (supra)**_ has clearly held that after granting building permits, local authorities cannot turn around and contend that the building permits had been granted by mistake and therefore the constructions are illegal in nature. 8. In the light of what is stated above, I am of the opinion that the petitioners who were issued the building permit which has not been cancelled or recalled, would be entitled to continue the construction in terms of the same. They would also be entitled for issuance of occupancy certificate, if the construction is in accordance with the permit. With regard to the alleged encroachment, I find that no steps had been taken by any authority to assess the actual extent, if any, of such encroachment or for removal of the same. In the absence of any such steps in accordance with law, I am not called upon to consider those questions at present. No steps have also been 11 _**WP(C).8459 & 9239/17**_ taken by the 2[nd] respondent and it was only on the basis of the interim order issued by this Court that an inspection was conducted and the details sought for were made available in the form of a report. In the above view of the matter, I am of the opinion that the notices impugned in W.P(C).No. 9239 of 2017 issued by the local authority which granted the building permit to the petitioners are not sustainable. The said notices are set aside. The petitioners shall be permitted to put up the construction in accordance with the building permit. I find no merit in W.P(C).No. 8459 of 2017. The same is dismissed. The writ petitions are ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs_