Joe Joseph v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY,THE 13TH DAY OF JANUARY 2021/23TH POUSHA,1942** ## **WP(C).No.9959 OF 2020(T)** ## **PETITIONER:** **JOE JOSEPH, AGED 49, S/O.M.D.JOSEPH, FLAT NO.A-63, ASHOKA APARTMENT, SHANMUGHAM ROAD, HIGH COURT JN, MARINE DRIVE, ERNAKULAM-682 031. BY ADV. SRI.ELVIN PETER P.J.** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBHAH ROAD, NEW DELHI-110 003.** - **2 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, DIRECTOR OF ENVIRONMENT AND CLIMATE CHANGE, 4TH FLOOR, KSRTC BUS TERMINAL, THAMPANOOR, THIRUVANANTHAPURAM-695 001.** - **3 STATE WETLAND AUTHORITY KERALA (SWAK), REPRESENTED BY ITS SECRETARY, 4TH FLOOR, KSRTC BUS TERMINAL, THAMPANOOR, THIRUVANANTHAPURAM-695 001.** - **4 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** WP(C) No.9959/2020 : 2 : - **5 KOCHI METRO RAIL LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, 8TH FLOOR, REVENUE TOWER, PARK AVENUE, KOCHI-682 011.** - **6 M/S.MARY MATHA INFRASTRUCTURE PRIVATE LIMITED, REPRESENTED ITS MANAGING DIRECTOR, MARY MATHA SQUARE, ARAKAZHA ROAD, MOOVATTUPUZHA-686 661.** **R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2-R3 BY ADV. SRI.M.P.PRAKASH** **R5 BY SRI.K.JAJU BABU,SC,KOCHI METRO RAIL LTD R5 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD. R6 BY ADV. SRI.P.SHANES METHAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.9959/2020 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 13[th] day of January, 2021**_ The petitioner, a resident of ‘Ashoka’ Flats facing backwaters of Vembanadu Lake, is aggrieved by the proposed construction of a 18 meter high building over the boat jetty terminal near Marine Drive, Ernakulam. 2. As part of the Kochi Water Metro Project, the 5[th] respondent-Kochi Metro Rail Limited submitted a proposal to construct a boat terminal near the High Court, adjacent to the flat where the petitioner is residing. The petitioner submits that the area is covered by CRZ Regulations. The 5[th] respondent has submitted Ext.P1 plan and the State of Kerala exempted construction of the boat terminal from the provisions contained in the Kerala Municipality Building Rules, 1999 as per Ext.P2. WP(C) No.9959/2020 : 4 : 3. The 5[th] respondent approached the Kerala Coastal Zone Management Authority for permission for construction of 41 boat jetty terminals for implementing Kochi Water Metro Project. The Coastal Zone Management Authority accorded permission for construction of boat terminals, as per Ext.P4. In Ext.P4, the Coastal Zone Management Authority has imposed a specific condition that the height of the proposed construction shall not exceed 9 m. 4. The State Wetland Authority also granted permission to the petitioner as per Ext.P5 observing that except boat jetty, no other building having permanent nature within 50 m. from the boundary of wetland is a permissible activity. The said condition was imposed in accordance with Rule 4 of the Wetlands (Conservation and Management) Rules, 2017. The petitioner therefore contended that the 5[th] respondent has no authority or power to construct any structure other than boat jetty within 50 m. from the mean high flood level. WP(C) No.9959/2020 : 5 : 5. The petitioner states that the 5[th] respondent thereafter moved the Union of India for approval and approval was granted with a specific condition that the restrictions and conditions imposed by the statutory authorities shall be strictly complied with. The 5[th] respondent has entrusted the construction work with the 6[th] respondent-builder. The 5[th] respondent is now proposing to construct a building of a height of 18 m. over the boat jetty which is highly illegal. Construction of such a high-rise building will deprive the petitioner and other residents of 'Ashoka' flats of free air and light since the building which is coming over the boat jetty terminal is very close to the 'Ashoka' flats. The petitioner would further allege that the 6[th] respondent has illegally reclaimed nearly 3000 square feet of backwaters to commence the alleged construction, violating rules. The 5[th] respondent is therefore compellable not to construct the building of permanent nature over the boat jetty terminal to a height of 18 m. WP(C) No.9959/2020 : 6 : 6. The 5[th] respondent resisted the writ petition filing counter affidavit. The 5[th] respondent stated that all the requisite clearances/no objection have been obtained by the 5[th] respondent from Kochi Municipal Corporation, Kerala State Wetland Authority and Kerala Coastal Zone Management Authority. The Ministry of Environment, Forest and Climate Change has also given its final clearance to the Kochi Water Metro Project. 7. The 5[th] respondent stated that the proposed Water Metro Terminal falls within CRZ IV Category, where ports, harbour, jetties, warves, quays, slipways, bridges, sea links and hover ports for coast guard, are permitted. The Kerala Municipal Building Rules, 2019 (KMBR, 2019) define the height of structures and gabled roof buildings. Roof structures are not included in the height of building as per the KMBR, 1999. The height of the building for High Court terminal is 8.80 m. The petitioner has projected the height as 18 m. with ulterior motive. The 5[th] respondent is not constructing six floors as alleged by the petitioner. Only two floor boat jetty is WP(C) No.9959/2020 : 7 : proposed. The proposed building is planned at a distance of approximately 23 m. from the existing lines of the petitioner's residence. The petitioner therefore cannot have any grievance that the roof structure will restrict wind and air movement. 8. The 2[nd] respondent-Kerala Coastal Zone Management Authority filed counter affidavit. According to the 2[nd] respondent, the 5[th] respondent has submitted NOC from State Wetland Authority, Kerala. The Kerala Coastal Zone Management Authority is not the authority to issue clearance for this project. Height restriction is not applicable to the activities in CRZ II area in which the proposed boat terminal is coming up. The terminal is therefore subject only to the existing local town and country planning regulations. The 2[nd] respondent also stated that the height of the proposed High Court boat terminal to mid point of pitched roof/gable roof is 8.8 m. Therefore, there is no merit in the contentions of the petitioner. 9. I have heard the learned counsel for the petitioner, learned ASGI appearing for the 1[st] respondent, learned WP(C) No.9959/2020 : 8 : Standing Counsel appearing for the 2[nd] respondent, learned Government Pleader appearing for the 4[th] respondent, learned Standing Counsel appearing for the 5[th] respondent and the learned counsel appearing for the 6[th] respondent. 10. The question is whether the proposed construction of boat terminal as part of the Kochi Metro Water Project undertaken by the 5[th] respondent violates Coastal Zone Regulations or any other statutory provision. The petitioner contends that proposed construction includes a building having six floors, of 18 m. height, which would violet CRZ Regulations. The 5[th] respondent has stated that the height of the building for the proposed High Court terminal is only 8.80 m., as per the definition of height of building in the Kerala Municipal Building Rules. 11. Height of building is defined under Section 2(bf) of the Kerala Municipal Building Rules, 1999, according to which height of building means vertical distance measured from average proposed ground level contiguous to the building, to the midpoint between the eves level and the ridge, in the case WP(C) No.9959/2020 : 9 : of pitched roofs and gabled roofs. The 2[nd] respondent has stated that the height of the construction proposed by the 5[th] respondent is only 8.8 m. 12. The argument of the petitioner that KMBR is not applicable to the construction and hence the definition of height of the building contained therein cannot be appreciated. The petitioner has not brought to the notice of this Court any other definition, statutory or otherwise, which should be made applicable to the construction in question. As KMBR is the basic statutory material governing Building Rules in Kerala, in the absence of any other provision defining height of building, reliance placed on the definition in KMBR cannot be found fault with. The contention of the petitioner relying on the judgment of the Apex Court in _**A.N. Sehgal and others v. Raje Ram Sheoram and others**_ ( AIR 1991 SC 1406) also cannot be applied in the facts of the case. 13. The further arguments of the counsel for the petitioner is that Rule 4(1)(vi) of the Wetlands (Conservation and Management) Rules, 2010, prohibits any construction of a WP(C) No.9959/2020 : 10 : permanent nature except for boat jetties within 50 m. from the mean high flood level observed in the past 10 years calculated from the date of commencement of these rules. In the present case, the construction proposal is for a boat jetty. The term 'boat jetty' would include not only the landing terminal but also appurtenant building. The proposed construction therefore cannot be said to violate the Wetlands (Conservation and Management) Rules, 2010. 14. As regards the argument of the petitioner to the effect that construction of the proposed boat jetty would deny free air and light to the petitioner and other residents of 'Ashoka' flats, the said argument cannot be accepted since the proposed boat jetty is 23 m. far from the apartment building where the petitioner resides. For all the above reasons, this Court finds no merit in the writ petition filed by the petitioner. The writ petition is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/11.01.2021 WP(C) No.9959/2020 : 11 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAN SUBMITTED BY THE 5TH RESPONDENT FOR THE CONSTRUCTION OF BOAT JETTY TERMINALS AND APPROVED BY THE COMPETENT AUTHORITIES** - **EXHIBIT P2 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 07.12.2019** - **EXHIBIT P3 TRUE COPY OF THE PERMISSION NO.696/8/ CA/AMASR DATED 16.03.2019 ISSUED BY THE OFFICE OF THE COMPETENT AUTHORITY** - **EXHIBIT P4 TRUE COPY OF THE PERMISSION NO.3560/A1/ 2018/KCAMA DATED 15.06.2019 ISSUED BY THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY.** - **EXHIBIT P5 TRUE COPY OF THE PERMISSION NO.SWAK/A1/ 33/19 DATED 10.07.2019 ISSUED BY THE STATE WETLAND AUTHORITY KERALA** - **EXHIBIT P6 TRUE COPY OF THE PLAN PROPOSED BY THE 5TH RESPONDENT FOR CONSTRUCTION OF BUILDING OVER THE BOAT JETTY TERMINAL** ## **RESPONDENTS' EXHIBITS** - **EXHIBIT R5(a) TRUE COPY OF THE COMMUNICATION VIDE NO.KMRL/WM/CORRES-STAKEHOLDER/F-33/143-19 DATED 31.05.2019 ISSUED BY THE 5TH RESPONDENT TO THE MEMBER SECRETARY, KERALA COASTAL ZONE MANAGEMENT AUTHORITY.** - **EXHIBIT R5(b) TRUE COPY OF THE FINAL CLEARANCE DATED 01.10.2019 ISSUED BY THE 1ST RESPONDENT TO THE KOCHI METRO RAIL LTD.** - **EXHIBIT R5(c) TRUE COPY OF THE SECTIONAL ELEVATION SHOWING RELEVANT HEIGHT.** ncd